NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except 

in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 220380-U

Order filed November 27, 2023

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2023 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

JAVIER N. HEREDIA-RIOS, ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 12th Judicial Circuit, 

Will County, Illinois, 

Appeal No. 3-22-0380 

Circuit No. 16-CF-2229 

Honorable 

Sarah-Marie F. Jones, 

Judge, Presiding. 

____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court. 

Justices Brennan and Peterson concurred in the judgment. 

____________________________________________________________________________

ORDER

¶ 1 Held: The circuit court did not abuse its discretion in denying defendant’s request 

for a continuance on the day of trial to retain new counsel. 

¶ 2 Defendant, Javier N. Heredia-Rios, was convicted of first degree murder and concealment 

of a homicidal death. On appeal, defendant argues the Will County circuit court abused its 

discretion in denying his request for a pretrial continuance to retain private counsel. We affirm.

¶ 3 I. BACKGROUND
2 

¶ 4 Defendant was charged by indictment with first degree murder (720 ILCS 5/9-1(a)(1),

(2) (West 2016)) and concealment of a homicidal death (id. § 9-3.4(a)). The charges alleged that 

on October 16, 2016, defendant caused the death of Oscar Garrido-Castro by strangling him and 

striking him in the head with a hammer. Defendant then concealed Garrido-Castro’s body by 

wrapping him in a cloth and placing him in the rear hatch of Garrido-Castro’s vehicle. 

¶ 5 Defendant was appointed a public defender and the case proceeded to a bench trial. On 

November 2, 2021, immediately prior to the start of trial, defense counsel informed the court that 

defendant was requesting a six-month continuance to retain private counsel and the following 

colloquy transpired: 

“[DEFENSE COUNSEL]: At this time, in speaking with the defendant, he 

has indicated that he wants a continuance of the trial to hire private counsel. And 

by way of representation for that continuance, judge, it is my understanding through 

the defendant that his family has been attempting or has contacted a couple of 

attorneys. 

He was supposed to receive a telephone call today or be able to make a call 

today, this morning, with regards to that, but was brought to court instead and in 

error because his case was not on the call, I guess, until this afternoon. So he was 

unable to either receive or make that call to get that information in order for me to 

provide that to the Court. 

I understand, judge—by way of record, I understand that this case has been 

pending for a substantial amount of time and that I do not believe at this time that 

a continuance on—for the defendant in order to obtain his counsel would be any 

undue burden to anyone involved in this particular case. 
3 

I also need, I guess, to inform the Court that the defendant has fired or said 

that he was firing me today while we were in court discussing this motion. He’s 

also firing co-counsel. 

 *** 

[DEFENSE COUNSEL]: The defendant is the one that is sitting in custody, 

and he is asking for six months, a six-month continuance. 

 * * * 

[DEFENSE COUNSEL]: And it is not for the purpose of delay of this trial, 

judge. It is solely because I don’t know that he has confidence in his counsel, his 

current counsel, which would be myself and [co-counsel]. 

THE COURT: [Defense Counsel], how long have you personally 

represented this defendant? 

[DEFENSE COUNSEL]: Several years. 

THE COURT: Okay. And today is the afternoon of trial, correct? 

[DEFENSE COUNSEL]: Yes, judge. 

THE COURT: And were you able to—we were out on an extended recess 

where I cleared the courtroom out so you and [co-counsel] could speak with 

[defendant]. The courtroom security personnel had to be present and the interpreter. 

Did you go over the stipulations with your client? 

[DEFENSE COUNSEL]: Yes, judge. 

THE COURT: On behalf of your client, he is making a request for a 

continuance? 

[DEFENSE COUNSEL]: Yes. 
4 

THE COURT: Couple things, it is untimely made. It is without cause. And 

here’s the thing, if private counsel came in this afternoon and said, hey, I am going 

to represent [defendant], it is well within my discretion to say, you know what, you 

can file your appearance but that doesn’t automatically mean you are going to get 

a continuance. Even if private counsel had appeared this afternoon, filed their 

appearance, it would not guarantee a continuance. Because that was within my 

discretion. And I would advise any private attorney who had come in this afternoon 

and said, hey, judge, I want to get in on this case, and I would caution them that 

just again filing an appearance the day of trial does not guarantee a continuance. 

[Defendant] is a client of the Will County Public Defender’s Office. He 

cannot fire you. He cannot request specific counsel. He is represented by the Public 

Defender’s Office and represented by the attorneys assigned by the Public Defender

***.”

The court then denied the request for continuance. In denying the request, the court noted that “this 

case has been pending for five years and [defense counsel] has represented [defendant] for several 

years as well.”

¶ 6 The case proceeded to trial that same day after which defendant was found guilty on all 

counts. Defendant was sentenced to consecutive terms of 38 years’ imprisonment for first degree 

murder and 5 years’ imprisonment for concealment of a homicidal death. Defense counsel filed a 

motion for a new trial on February 10, 2022. The motion argued, inter alia, that the State failed to 

prove defendant’s guilt beyond a reasonable doubt and that the court failed to properly consider 

defendant’s self-defense claim. On May 20, 2022, defense counsel informed the court that an 

amended motion for a new trial had been prepared for filing and tendered to the State. The amended 
5 

motion included the claim that the court erred in denying defendant’s request for a continuance to 

retain private counsel. After a hearing, the court denied the amended motion. Defendant appealed.

¶ 7 II. ANALYSIS

¶ 8 On appeal, defendant argues that the circuit court abused its discretion when it denied his 

request for a continuance to retain private counsel. Specifically, defendant contends that the court 

failed to make a sufficient inquiry to properly consider his request when it did not question him 

directly about his reasons for requesting additional time to retain private counsel.1

 

¶ 9 A defendant’s constitutional right to the assistance of counsel (U.S. Const., amends. VI, 

XIV; Ill. Const. 1970, art. I, § 8), includes the right to retain defendant’s counsel of choice. People 

v. Jenkins, 2020 IL App (1st) 172422, ¶ 12. However, the right to counsel of choice is subject to 

forfeiture when a defendant abuses the right “in an attempt to delay trial and thwart the effective 

administration of justice.” People v. Tucker, 382 Ill. App. 3d 916, 920 (2008). “It is within the trial 

court’s discretion to determine whether the defendant’s right to selection of counsel unduly 

interferes with the orderly process of judicial administration.” Id. In balancing the defendant’s 

right to counsel of choice against the needs of fairness and the demands of its calendar, the court 

is given great deference. People v. Roberts, 2021 IL App (3d) 190445, ¶ 33. A reviewing court 

will not overturn the decision to deny a continuance for substitution of counsel absent an abuse of 

discretion. People v. Segoviano, 189 Ill. 2d 228, 245 (2000). 

1

We note initially that the parties believed the issue to be forfeited based on defendant’s assertion 

that his amended motion for a new trial was never addressed by the circuit court. However, our review of 

the record indicates that the court accepted and denied defendant’s amended motion for a new trial when it 

was offered by defense counsel in open court, after counsel indicated it was ready to file and had been 

previously tendered to the State. The State did not object to the court’s consideration of the amended motion 

at the hearing. Accordingly, we find the issue was properly preserved. See People v. Alexander, 2019 IL 

App (3d) 160709, ¶ 15 (holding an issue raised in defendant’s untimely filed posttrial motion was not 

forfeited as the State did not object and the court ruled on the motion).
6 

¶ 10 When evaluating the circuit court’s exercise of discretion, we consider “the diligence of 

the movant, the right of the defendant to a speedy, fair and impartial trial, and the interests of 

justice.” Id. Additionally, in balancing judicial interests against a defendant’s constitutional right 

to counsel of choice, the court must inquire into the basis for the defendant’s request to determine 

whether it is being employed as a delaying tactic. Roberts, 2021 IL App (3d) 190445, ¶ 35. Factors 

for the court to consider include: 

“whether defendant articulates an acceptable reason for desiring new counsel; 

whether the defendant has continuously been in custody; whether he has informed 

the trial court of his efforts to obtain counsel; whether he has cooperated with 

current counsel; and the length of time defendant has been represented by current 

counsel.” Tucker, 382 Ill. App. 3d at 920.

“However, it is well established that a trial court will not be found to have abused its discretion in 

denying a motion for substitution of counsel in the absence of ready and willing substitute 

counsel.” Segoviano, 189 Ill. 2d at 245.

¶ 11 Despite defendant’s contention to the contrary, the court here was not required to directly 

question defendant in order to make a proper inquiry into the circumstances surrounding his 

request for a continuance to retain private counsel. See People v. Ramsey, 2018 IL App (2d) 

151071, ¶ 30. The court’s discussion with defense counsel provided the court with sufficient 

information to properly exercise its discretion with respect to defendant’s request. The court was 

informed that defendant lacked confidence in his current counsel, who had already represented 

him for several years. On the date of trial, with no previous attempts made to replace counsel, 

defendant requested a six-month continuance to substitute counsel in a homicide case that had 

been pending for five years. See People v. Antoine, 335 Ill. App. 3d 562, 581 (2002) (no abuse of 
7 

discretion in denying a request where defendant had been represented by current counsel for the 

preceding three years and had not requested to substitute counsel during that time). Although 

defendant’s family had either contacted or attempted to contact several attorneys, none were 

specifically identified and there was no indication that any replacement counsel had been retained 

or was ready to enter an appearance. See People v. Burrell, 228 Ill. App. 3d 133, 142 (1992) (no 

abuse of discretion in denying a motion “if new counsel is not specifically identified or does not 

stand ready, willing, and able to make an unconditional entry of appearance instanter.”). In light 

of the circumstances, the court did not abuse its discretion when it denied defendant’s request for 

a continuance to retain private counsel. 

¶ 12 III. CONCLUSION

¶ 13 The judgment of the circuit court of Will County is affirmed. 

¶ 14 Affirmed.