2023 IL App (4th) 220014-U 

NO. 4-22-0014 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT 

THE PEOPLE OF THE STATE OF ILLINOIS,

 Plaintiff-Appellee,

 v. 

JAVARUS T. LEACH, 

 Defendant-Appellant. 

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Appeal from the

Circuit Court of

 Winnebago County 

No. 03CF2076 

 Honorable 

Joseph G. McGraw, 

Judge Presiding. 

 JUSTICE STEIGMANN delivered the judgment of the court. 

 Justices Turner and Zenoff concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed the trial court’s order dismissing defendant’s 

postconviction claim of ineffective assistance of counsel for failure to allege on 

direct appeal that the trial court abused its discretion by denying defendant’s motion 

to continue to locate a defense witness who was evading service. 

¶ 2 In August 2005, a jury found defendant, Javarus T. Leach, guilty of first degree 

murder (720 ILCS 5/9-1(a)(2) (West 2002)), and the trial court later sentenced him to 60 years in 

prison. In August 2010, defendant, through counsel, filed a third amended petition seeking relief 

under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)) alleging, 

among other things, that defendant’s counsel on direct appeal rendered ineffective assistance by 

failing to argue that the court had abused its discretion by denying defendant’s motion to continue

defendant’s jury trial to locate a defense witness. In August 2013, the court granted the State’s 

motion to dismiss defendant’s claim.

FILED

April 7, 2023

Carla Bender

4th District Appellate

Court, IL

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). 
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¶ 3 Defendant appeals, arguing that (1) the trial court erred by dismissing defendant’s 

claim of ineffective assistance of appellate counsel at the second stage because defendant made a 

substantial showing that appellate counsel rendered ineffective assistance by failing to argue on 

direct appeal that the court abused its discretion by denying defendant’s motion to continue and 

(2) alternatively, defendant received unreasonable assistance from his postconviction counsel for 

failure to allege facts contained in the trial record that were necessary to establish that appellate 

counsel was ineffective. 

¶ 4 We disagree and affirm.

¶ 5 I. BACKGROUND

¶ 6 A. The Charges, Pretrial Proceedings, and Jury Trial

¶ 7 1. The Charges 

¶ 8 In August 2003, the State charged defendant with first degree murder (720 ILCS 

5/9-1(a)(2) (West 2002)), alleging that in July 2003, defendant shot and killed Quantel Blaylock.

¶ 9 2. The Pretrial Proceedings

¶ 10 Defendant’s case proceeded through the normal course of pretrial discovery and 

pretrial motions. In March 2005, defense counsel announced that the parties were “getting very 

close to answering ready for trial.” In April 2005, at a status hearing, the trial court set the case for 

a jury trial on July 18, 2005. 

¶ 11 On June 20, 2005, at a status hearing, defense counsel asked the trial court to 

authorize $2000 to hire the Rockford Detective Agency to assist with defense witness interviews 

and service of subpoenas. The court authorized $1000 “at this stage” and told counsel that if he 

exhausted that amount, he could “status it up and we can consider a further amount.” 

¶ 12 The parties next convened on July 15, 2005, for a “final pretrial.” Defense counsel 
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reported to the court the following regarding defense witnesses: 

“[F]or the last two weeks to ten days, we’ve had Rockford Detective Agency 

firming up and taking statements. And at 11 o’clock this morning I received a 

statement from one of our three main witnesses, if you will, for the first time. And 

that’s not without a considerable amount of effort on my part to have the witness 

voluntarily come forward months prior to this week.

I tendered a copy of that statement to [the prosecutor] just now, moments 

ago. And I think that it is an important matter, it changes the—it enhances the 

defense position.” 

(We note that defense counsel did not identify the witness by name at this hearing, but counsel’s 

comments at a later hearing establish that the witness was Troy Perkins.) 

¶ 13 Defense counsel moved to continue defendant’s jury trial from July 18, 2005, to 

August 15, 2015. However, counsel asked that the case still be called for status on July 18, 2005, 

so the trial court could admonish witnesses that their trial subpoenas were being continued to 

August 15. Without objection from the State, the court granted defendant’s motion to continue the 

jury trial. 

¶ 14 On July 18, 2005, the parties convened for a status hearing and further discussed 

with the trial court the scheduling of defendant’s jury trial and the status of witness subpoenas. 

Defense counsel advised the court that he had “two subpoenas that were served and the individuals 

are not here” and asked for a bench warrant. The court asked if the two individuals had been 

uncooperative. Counsel replied that one had been cooperative and the other had been “very 

evasive.” The court replied, “Well, *** consider what you want to do, but I suppose if we 

resubpoenaed them for August 10 and they didn’t appear, that would be enough time with a warrant 
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to get them in custody before the trial before your case comes up anyway.” 

¶ 15 Defense counsel replied, “Yes, I think it would.” 

¶ 16 The trial court then told defense counsel to “resubpoena those people for 10:30 on 

August 10. And *** you can attach a note to the subpoena that a failure to appear will result in a 

warrant for an arrest or something like that.” (We note that defense counsel again did not identify 

the witnesses by name, but counsel’s comments at a later hearing establish that one of the witnesses 

was Perkins.) 

¶ 17 The parties convened again on August 10, 2005, for a hearing on pretrial motions. 

At the conclusion of the hearing, defense counsel raised the issue of the status of his subpoenas to 

two defense witnesses, Perkins and Marcus Robinson. Counsel stated, “These are two important 

defense witnesses.” Counsel advised the trial court that he had submitted the new subpoenas for 

August 10 to the Rockford Detective Agency “over a week ago, perhaps 10 days ago.” Counsel 

stated that he had spoken to the “serving agent” that morning, and the agent “said that he attempted 

service on Marcus Robinson and Troy Perkins at least 8 to 9 times apiece and has had difficulty.” 

Counsel further stated as follows:

“I spoke with [the prosecutor]. He said that Troy Perkins has—there is a 

bench warrant out on behalf of the State for some pending offense Mr. Perkins 

allegedly committed. I talked briefly to my client this morning, that we were still 

having difficulty serving these individuals.

Now, they failed to appear on July 18th, and whether or not—what we can 

do, whether the Court would issue a material witness warrant for them, I need to 

address that with you. I probably will not be presenting the testimony until 

Thursday or Friday, next week, but they did fail to appear on the 18th. I think that 
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they are evading service from my process server.” 

¶ 18 Shortly thereafter, the prosecutor addressed the trial court regarding the State’s 

efforts to assist with locating and serving the defense witnesses. The prosecutor stated the 

following: 

“We have been looking for [Robinson], too, Judge. Troy Perkins did call 

back. They returned a phone call to our detectives. [Perkins] failed to appear in 

court last Friday. There was a warrant issued, so there’s an outstanding warrant for 

him[.]” 

¶ 19 The trial court then determined that it was unnecessary to issue a warrant for 

Perkins at that time because “there’s already a bench warrant for him.” Defense counsel replied, 

“Agreed.” 

¶ 20 The parties then discussed the length of the trial, agreeing that it would last 

approximately one and a half weeks. 

¶ 21 3. The Jury Trial

¶ 22 i. Defendant’s Motion to Continue

¶ 23 On August 15, 2005, the parties convened for defendant’s jury trial. Defense 

counsel stated as follows:

“Judge, I wish to communicate to the court that the defense has disclosed 

Troy Perkins as a witness. We had a subpoena served on Mr. Perkins for the 

previously scheduled trial date, July 18[, 2005]. He did not appear on July 18th.

On July 15th, I received a statement from the Rockford Detective Agency, 

as they interviewed Troy Perkins, and I’ve tendered a copy of that to counsel.

The Rockford Detective Agency statement was very favorable to the 
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defense. I then attempted to serve Troy Perkins with a subpoena to appear on 

August 10, our last final pretrial conference. I talked to the serving individual from 

Rockford Detective Agency, and he said that he made numerous—several attempts 

to locate Troy Perkins at 1712 Genoa Street.

At our last pretrial conference on August 10, the State disclosed that there 

was a pending bench warrant for Troy Perkins on an unrelated matter and they were 

also looking for him.

In my opinion, Troy Perkins is a very material witness to the defense and a 

very vital witness to the defense concerning the circumstances existing prior to the 

shooting itself. He has given a statement describing himself as an eyewitness at the 

location, and his statements are very vital to the defense.

I reported to my client this morning that despite our efforts, including over 

the weekend—I’ve checked with the jail. He is not among the population of the 

Winnebago County jail—that a warrant for his arrest has not yet been perfected.

I advised my client I felt it was appropriate to move for a continuance on 

behalf of the defense until Troy Perkins could be secured as a material witness.

My client has informed me that he does not wish to have a continuance, that 

he wishes to proceed to trial. It is my advice and my position that we should move 

for a continuance until the pending bench warrant or further order of the court is 

served and Mr. Troy Perkins is secured as a witness for us. He is a very material 

witness to us.”

¶ 24 The trial court replied, “Well, preliminarily I believe that it is counsel’s decision as 

to whether or not to make the motion for continuance, not their client’s decision. So, are you 
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making a motion?” Defense counsel responded, “I am making the motion, Your Honor.”

¶ 25 The prosecutor objected, telling the trial court that his office had been attempting 

to locate Perkins and further stating as follows:

“There is a warrant out for [Perkins]. They certainly can secure his 

attendance prior to—they haven’t shown that there’s any—we have been trying to 

locate him just simply to interview him, but they do have a statement that they’ve 

provided. 

I don’t—based on what—my reading of the statement, I guess. I don’t have 

the same feeling as far as how important that testimony is to—to the case.

Mr. Perkins is simply another—simply an individual who purportedly now 

states that he was at the scene and actually is the subject to one of my motions 

in limine, which I would like to get to, and it depends on how the court rules. Also 

this would determine how important this Troy Perkins is. But we would object. 

They can certainly secure his attendance. We’ve attempted to locate him.

They haven’t given us any indication that they are going to get him into 

custody. He is evading us. He is evading defense. I think the guy doesn’t want to 

be here. He doesn’t want to testify. He did return a phone call and said he would 

meet with our detective, and then he didn’t. So that’s the best that we have been 

able to do with this guy.”

¶ 26 The trial court asked, “Could your office assist the defense in making sure that they 

have somebody working on this arrest warrant currently?”

¶ 27 The prosecutor responded as follows:

“We already have. Judge, I’ve sent the tactical unit out. I have had a 
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detective working on it at all times, and he still is. I will double check with him to 

make sure that he is still on it. So we have done everything that we can from our 

end.” 

¶ 28 The trial court asked defense counsel, “[D]id you have something else?” Defense 

counsel responded as follows:

“On—at our last final pretrial on August 10, [the prosecutor] was saying we 

already have a bench warrant, we are already working on this, we hope to have 

him—I will have him by the weekend, and we will be ready to go on Monday. I 

mean, these are representations of assistance by [the prosecutor]. And that he’s 

already wanted on a prior warrant; and that we are going to have trouble finding 

him; if they can’t find him, nobody can.

This is why we feel we have to have a short continuance of some duration. 

I don’t know what, Judge, but I am reluctant to empanel a jury this morning and 

tomorrow without having a material witness warrant, and perhaps we need to have 

this man brought before the court and answer to the court as to his availability.

Now, he did not appear on July 18. I think that’s the basis for our own 

independent material witness bench warrant to go forth, and I’m talking about a 

very short matter.

I know there is a lot of preparation on both sides to present this case today, 

but this is a very significant witness based on the prior statement that he made in 

July of ’05, and he is, I think, evading, yes. I don’t think that his intentions are to 

cooperate with us, but I also feel that we need to have him brought in before the 

jury on behalf of the defendant, and this is my request.”
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¶ 29 The following exchange then occurred:

“THE COURT: And you’ve had a subpoena outstanding for him; is that 

right? 

THE PROSECUTOR: Since July 18. Then I attempted to resubpoena him 

for our final pretrial conference on August 10.

My private process server was unable to locate him even though they made 

several attempts, and they were in very close communication with him concerning 

what the problems were. They left cards, messages, and so forth, and physically 

went to the residence, 1712 Genoa. ‘Several times’ were his exact words. He 

estimated eight to nine times.

THE COURT: Do the statutes provide for a material witness warrant?

DEFENSE COUNSEL: It is an unusual situation, Judge. I think he is in 

contempt of court for having failed to appear on July 18, and beyond that, I am not 

sure.

THE COURT: At your request I will issue a warrant for him and—however, 

considering the age of this case—it’s going on two years, isn’t it?

DEFENSE COUNSEL: Yes.

THE COURT: I don’t believe that I can simply continue the trial based upon 

this witness evading process. We don’t know whether—when he might be found or 

whether he might be found. All we can do is our best in attempting to find him. It 

sounds like you are doing your best. The State has an arrest warrant active, and you 

are having an arrest warrant issued. 

Undoubtedly this trial will extend another five days, won’t it? So it gives 
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time before the end of the trial for them to continue looking for him, but I am going 

to deny the motion for continuance.”

¶ 30 ii. The Evidence

¶ 31 Defendant’s jury trial commenced. The State presented the testimony of six 

eyewitnesses who were present at the intersection of Henrietta and West State Streets in Rockford, 

Illinois, on the evening of July 24, 2003, when Quantel Blaylock was shot. Each witness testified 

similarly that defendant and Blaylock were arguing in the street. Blaylock told defendant that he 

did not want to argue. Defendant pulled a gun and pointed it at Blaylock. Two of the eyewitnesses 

additionally testified that Blaylock put his hands up when defendant pulled out his gun and pointed 

it at Blaylock. All six witnesses testified that Blaylock then turned around and began running away. 

Defendant chased after Blaylock and shot at Blaylock’s back. 

¶ 32 A forensic pathologist testified that Blaylock suffered two gunshot wounds. One 

shot entered his left hip and did not exit. The other shot entered his back, traveled through his lung, 

and exited his chest. Blaylock died of pneumonia resulting from the gunshot wound.

¶ 33 A Woodridge police officer testified that, on August 3, 2003, he located defendant 

at a home in Woodridge, Illinois. (Woodridge is approximately 89 miles from Rockford.) 

Defendant initially gave a false name but later gave his true name at the police station after learning 

he could be charged with obstructing justice. 

¶ 34 A Rockford police detective testified that he attempted to obtain defendant’s “side 

of the story” on four separate occasions between August 3 and 14, 2003. During one interview, 

the detective provided defendant with details of the investigation, including the eyewitness 

statements implicating defendant, and asked defendant whether it was possible Blaylock had a gun 

and defendant shot him in self-defense. Each time the detective asked defendant for his statement, 
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defendant answered that he was not present and did not know Blaylock.

¶ 35 Defendant testified that he went to the intersection of Henrietta and West State 

Streets to visit a friend. Defendant was standing with another friend, Darrell Cross, outside of 

Cross’s parked car when Blaylock and three other men all started approaching defendant, yelling 

at him. Defendant testified he was scared and trying to keep an eye on everyone. He saw Blaylock 

reach under his shirt, so defendant pulled out his gun and “wav[ed] it around.” After defendant 

said “get back,” Blaylock reached slowly under his shirt. Defendant testified that he saw the butt 

of a gun in Blaylock’s waistband so he shot Blaylock three times. He did not remember what 

happened after the shooting except that everyone began running. 

¶ 36 On cross-examination, defendant agreed that when the detectives asked for his side 

of the story on August 3, 4, and 14, 2003, he told them he was not present at the shooting. 

¶ 37 The only other witness to testify for the defense was Lonnie Thomas, who testified 

regarding a fight in 1998 that may have been the motivating incident for the 2003 shooting. 

¶ 38 The trial court instructed the jury on self-defense and second degree murder. The 

jury found defendant guilty of first degree murder. 

¶ 39 Defendant filed a posttrial motion arguing, among other things, that the trial court 

abused its discretion when it denied defendant’s motion to continue to locate Perkins. The court 

denied the motion and subsequently sentenced defendant to a total of 60 years in prison (35 years 

for first degree murder plus a 25-year mandatory firearm enhancement). 

¶ 40 B. The Direct Appeal

¶ 41 In 2005, defendant appealed, arguing that the trial court erred when sentencing him 

because it failed to take into account the cumulative effect of the normal sentence for first degree 

murder (see 730 ILCS 5/5-8-1(a)(1)(a) (West 2004)) and the add-on for the use of a firearm in 
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conjunction with the murder (see id. § 5-8-1(a)(1)(d)(iii)). The appellate court affirmed. People v. 

Leach, No. 2-05-1010 (2007) (unpublished order under Supreme Court Rule 23). 

¶ 42 C. The Postconviction Petition

¶ 43 In August 2010, defendant, through counsel, filed a third amended petition for relief 

under the Act, alleging, among other things and relevant to this appeal, that appellate counsel was 

ineffective by failing to raise on direct appeal the trial court’s “refusal to grant a continuance based 

upon the unavailability of defense witness, Troy Perkins.” Defendant attached to the petition an 

affidavit of Perkins dated October 2008, in which Perkins averred that, just prior to the shooting, 

he saw Blaylock and someone he knew only as “Chuck” approach defendant while screaming at 

him. Perkins further stated that Blaylock was “fiddling” with his shirt around his waistband and 

“Chuck” lifted his shirt around his waistband. Perkins heard shots and ran away. He did not see 

who fired the shots. 

¶ 44 In December 2011, the State filed a motion to dismiss all of defendant’s 

postconviction claims. In March 2013, the trial court conducted a hearing on the State’s motion to 

dismiss and took the matter under advisement. 

¶ 45 In August 2013, the trial court issued an oral ruling denying the motion in part and 

allowing the motion in part. Relevant to this appeal, the court dismissed defendant’s claim of 

ineffective assistance of appellate counsel for failure to argue that the court abused its discretion 

by denying defendant’s motion to continue. The court did not specifically address the basis for its 

dismissal of this claim but stated generally that all of the dismissed claims were “completely

meritless and either barred by collateral estoppel or waived or not rising to the level of Strickland

standards.” See Strickland v. Washington, 466 U.S. 668 (1984). The court advanced three claims 

(not at issue in this appeal) for a third stage “fact-finding evidentiary” hearing.
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¶ 46 In November 2021, after several years of delay caused by a change in attorneys and 

litigation of supplemental postconviction claims, the trial court conducted the evidentiary hearing 

on the remaining claims. In December 2021, the court denied defendant’s remaining claims.

¶ 47 This appeal followed. 

¶ 48 II. ANALYSIS

¶ 49 Defendant appeals, arguing that (1) the trial court erred by dismissing defendant’s

claim of ineffective assistance of appellate counsel at the second stage because defendant made a 

substantial showing that appellate counsel rendered ineffective assistance by failing to argue on 

direct appeal that the court abused its discretion by denying defendant’s motion to continue and 

(2) alternatively, defendant received unreasonable assistance from his postconviction counsel for 

failure to allege facts contained in the trial record that were necessary to establish that appellate 

counsel was ineffective.

¶ 50 We disagree and affirm.

¶ 51 A. The Applicable Law 

¶ 52 1. The Post-Conviction Hearing Act

¶ 53 The Act provides a method by which a defendant can assert that his conviction was 

the result of a substantial denial of his constitutional rights. People v. Tate, 2012 IL 112214, ¶ 8, 

980 N.E.2d 1100. A proceeding under the Act consists of three stages. Id. ¶ 9. 

¶ 54 At the first stage, the trial court conducts its own review of the petition to determine 

if the petition states the gist of a constitutional claim. People v. Allen, 2015 IL 113135, ¶ 24, 32 

N.E.3d 615. “If the petition is not summarily dismissed at the first stage, the proceedings move to 

the second stage.” People v. House, 2021 IL 125124, ¶ 16, 185 N.E.3d 1234. 

¶ 55 “At the second stage of postconviction proceedings, counsel may be appointed to 
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represent the petitioner ***.” Id. ¶ 17. To avoid dismissal, a defendant must set forth in his petition 

a substantial showing of a constitutional violation and attach any accompanying documentation. 

Id. “Upon a substantial showing of a constitutional violation, the petition must be advanced to the 

third stage, where the [trial] court conducts an evidentiary hearing.” People v. Brown, 2017 IL 

121681, ¶ 24, 102 N.E.3d 205 (citing 725 ILCS 5/122-6 (West 2012)). “Upon no showing, the 

petition should be dismissed.” Id.

¶ 56 The dismissal of a postconviction petition without an evidentiary hearing is 

reviewed de novo. Id. 

¶ 57 2. Ineffective Assistance of Appellate Counsel

¶ 58 “[A] defendant who contends appellate counsel rendered ineffective assistance 

must show (1) the failure to raise an issue on appeal was objectively unreasonable and (2) that 

decision prejudiced the defendant.” People v. Phillips, 2017 IL App (4th) 160557, ¶ 66, 92 N.E.3d 

544. Prejudice has been defined as “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.)

People v. Veach, 2017 IL 120649, ¶ 30, 89 N.E.3d 366. “Unless the underlying issue is 

meritorious, a defendant suffers no prejudice from counsel’s failure to raise the issue on appeal.” 

Phillips, 2017 IL App (4th) 160557, ¶ 66. 

¶ 59 3. Motions To Continue Jury Trial

¶ 60 In People v. Walker, 232 Ill. 2d 113, 125-26, 902 N.E.2d 691, 697-98 (2009), the 

supreme court set forth the law applicable to an appellate court’s review of a trial court’s granting 

or denial of a motion to continue, writing as follows:

“It is well settled that the granting or denial of a continuance is a matter 

resting in the sound discretion of the trial court, and a reviewing court will not 
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interfere with that decision absent a clear abuse of discretion. [Citation.] However, 

‘[w]here it appears that the refusal of additional time in some manner embarrassed 

the accused in the preparation of his defense and thereby prejudiced his rights, a 

resulting conviction will be reversed.’ [Citation.]

Whether there has been an abuse of discretion necessarily depends upon the 

facts and circumstances in each case [citations], and ‘[t]here is no mechanical test 

*** for determining the point at which the denial of a continuance in order to 

accelerate the judicial proceedings violates the substantive right of the accused to 

properly defend.’ [Citation.] Factors a court may consider in determining whether 

to grant a continuance request by a defendant in a criminal case include the 

movant’s diligence, the defendant’s right to a speedy, fair and impartial trial and 

the interests of justice. [Citations.] Other relevant factors include whether counsel 

for defendant was unable to prepare for trial because he or she had been held to trial 

in another cause [citation], the history of the case [citation], the complexity of the 

matter [citation], the seriousness of the charges [citation], as well as docket 

management, judicial economy and inconvenience to the parties and witnesses 

[citation].” (Emphasis added.)

¶ 61 A trial court abuses its discretion when its decision is “ ‘fanciful, arbitrary, or 

unreasonable to the degree that no reasonable person would agree with it.’ ” People v. Kladis, 2011 

IL 110920, ¶ 23, 960 N.E.2d 1104 (quoting People v. Ortega, 209 Ill. 2d 354, 359, 808 N.E.2d 

496, 500-01 (2004)). 

¶ 62 B. This Case

¶ 63 Because a defendant cannot prevail on a claim of ineffective assistance of counsel 
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if the underlying claim lacks merit, defendant’s appeal turns on whether the trial court abused its 

discretion when it denied his motion to continue. Defendant argues that the court did not exercise 

its discretion at all because it did not examine the Walker factors, which weighed in favor of 

granting the motion to continue. Regarding the Walker factors, defendant argues (1) trial counsel 

was diligent in attempting to procure Perkins as a witness, (2) Perkins was a material witness, and 

(3) the charge in the case was serious. Defendant contends that the court only considered the factor 

of “judicial economy,” which did not outweigh counsel’s diligence, Perkins’s materiality, and the 

seriousness of the charges. 

¶ 64 Defendant is correct that the charges were serious. As to defendant’s diligence in 

securing Perkins’s testimony, we note that defendant was charged in August 2003. In April 2005, 

the parties set the July 18, 2005, jury trial date by agreement. It was not until July 15, 2005—

almost two years after charges were brought and three months after announcing ready for trial—

that defendant first became aware of Perkins’s statement and that it was helpful to the defense. The 

discovery of Perkins as a witness was due to the assistance of the Rockford Detective Agency, 

which counsel did not seek until June of 2005. We agree with defendant, however, that once 

Perkins was identified, counsel was diligent in procuring his presence at trial. We would rate the 

factor of counsel’s diligence as neutral, given the lapse of two years before counsel sought 

investigative assistance in developing defense witnesses. 

¶ 65 Regarding Perkins’s materiality as a witness, we also view this factor as neutral for 

the simple reason that the trial court was never advised what Perkins’s testimony would be. The 

only information the court had before it regarding this factor was defense counsel’s representation 

that Perkins was a material eyewitness for the defense. At that point in time, defense counsel was 

aware of the details of Perkins’s statement and had even tendered it to the prosecution. However, 
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counsel made no offer of proof to the court. In fact, this court is aware of the details of Perkins’s 

statement only because his 2008 affidavit was an attachment to a postconviction petition filed in 

2010. When the court denied defendant’s motion to continue the jury trial in August 2005, 

defendant had not offered any facts upon which the court could assess the materiality of Perkins’s 

testimony. It is only in retrospect that defendant is able to argue that the materiality factor weighs 

in favor of granting the continuance. We will not hold the court to have erred by failing to consider

the contents of a statement the court never heard. 

¶ 66 Regardless, we reiterate that (1) whether a trial court has abused its discretion 

depends on the facts and circumstances of the case and (2) “[t]here is no mechanical test” to be 

applied. (Internal quotation marks omitted.) Walker, 232 Ill. 2d at 125-26. The factors suggested 

in Walker are just that—suggestions. Defendant’s argument is predicated on a mechanical 

application of the Walker factors that results in his favor. We note, however, that defendant’s 

analysis omits facts and circumstances unique to this case and material to our determination—

namely, that (1) the trial court had already granted defendant a monthlong continuance of his jury 

trial (from July 18, 2005, to August 14, 2005) for the purpose of securing Perkins’s attendance and 

(2) Perkins was purposefully evading service. These facts do not fit neatly into any of the Walker

factors, which demonstrates the wisdom of the supreme court’s admonition that the factors are not 

to be mechanically applied and each case turns on its own facts and circumstances. 

¶ 67 We additionally note that (1) both private and public investigative agents (including 

a “tactical unit”) were actively looking for Perkins from at least July 15 through August 15, 2005, 

without success; (2) Perkins had phone contact with detectives, meaning he was aware his presence 

was being sought; (3) despite this, Perkins failed to appear for the July trial setting and his 

unrelated court appearance; (4) the trial court issued a material witness warrant for Perkins, 
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observing that there were still several days to find him before defendant presented his case; 

(5) defense counsel asked for the August 15 continuance over defendant’s objection; and 

(6) defense counsel was seeking a “very short” continuance.

¶ 68 We also disagree with defendant that the only factor the trial court considered was 

“judicial economy.” In addition to noting that the case had been pending for two years, the court 

also observed, “We don’t know *** when he might be found or whether he might be found. All 

we can do is our best in attempting to find him.” The court addressed the matter of defendant’s 

witnesses at a minimum of four hearings and offered tangible assistance in securing Perkins’s 

attendance by giving defendant (1) financial assistance, (2) additional time, and (3) a bench 

warrant. 

¶ 69 Based upon all of these facts and circumstances, we conclude that the trial court’s 

decision to deny defendant’s August 15, 2005, motion to continue did not come close to 

constituting an abuse of the court’s discretion. Because the court did not abuse its discretion by 

denying defendant’s motion to continue, defendant’s postconviction claim that appellate counsel 

was ineffective for failing to raise the issue on appeal lacks merit. Accordingly, the court did not 

err by dismissing the claim at the second stage of postconviction proceedings. 

¶ 70 For the same reason—namely, that defendant cannot show prejudice because his 

underlying claim that the trial court abused its discretion lacks merit—we reject defendant’s 

alternative argument that postconviction counsel was ineffective for failing to allege facts 

contained in the record that were necessary to establish that direct appeal counsel was ineffective 

for failing to raise the court’s denial of defendant’s motion to continue. Notably, defendant argues 

that postconviction counsel failed to allege specific facts that would have established ineffective 

assistance of appellate counsel, but in so arguing defendant identifies no such specific facts. 
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Instead, he argues only that postconviction counsel was too vague. Moreover, this court’s de novo 

review of the trial court’s decision included a thorough examination of the record on appeal in its 

entirety and uncovered no such facts. 

¶ 71 III. CONCLUSION

¶ 72 For the reasons stated, we affirm the trial court’s judgment.

¶ 73 Affirmed.