People v. Dixon

2026 IL App (2d) 250407 No. 2-25-0407 Opinion filed November 12, 2026 IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TYNELL DIXON, Defendant-Appellee. Appeal from the Circuit Court of Kane County. Honorable Salvatore LoPiccolo Jr., Judge, Presiding. No. 08-CF-1067 JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Kennedy concurred in the judgment and opinion. Justice Schostok specially concurred, with opinion. OPINION ¶1 The State appeals a judgment, entered after an evidentiary hearing, granting the petition of defendant, Tynell Dixon, for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122- 1 et seq. (West 2024)). The postconviction court determined that the trial court violated defendant’s constitutional right to counsel of his choice when it denied his request to substitute counsel three weeks before trial. We affirm. ¶2 I. BACKGROUND ¶3 A. Overview ¶4 After a jury trial in 2012, defendant was convicted of eight counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)) and three counts of aggravated criminal sexual abuse (id. § 12-16(c)(1)(i)). He was sentenced to eight concurrent mandatory prison terms of natural life for predatory criminal sexual assault of a child, to be served concurrently with three concurrent discretionary five-year terms for aggravated criminal sexual abuse. On direct appeal, we affirmed. People v. Dixon, 2013 IL App (2d) 120986-U (Dixon I). ¶5 In 2014, defendant filed a pro se petition under the Act. The postconviction court appointed counsel, who later filed a second amended petition. Defendant contended that, in his underlying criminal case, the trial court denied him his constitutional right to the counsel of his choice and that his counsel on direct appeal was ineffective for failing to raise this claim of error. The second amended petition was ultimately dismissed, but we reversed the dismissal and remanded for an evidentiary hearing (People v. Dixon, 2024 IL App (2d) 220399-U, ¶ 44) (Dixon II). Following the hearing, the postconviction court granted the petition and ordered a new trial. ¶6 B. The Underlying Proceedings ¶7 1. Pretrial and Trial Proceedings ¶8 At the outset, we note that there are significant gaps in the pretrial portion of the record in this appeal. To obtain the fullest picture of the pretrial proceedings, we take judicial notice of the record in the previous postconviction appeal, No. 2-22-0399, which contains reports of proceedings missing from the record in the present appeal. See Wells Fargo Bank, N.A. v. Watson, 2012 IL App (3d) 110930, ¶ 3 n.1 (proper to take judicial notice of record in related appeal). Even considering both records, gaps remain. They consist mostly of missing reports of proceedings, but at least two orders are missing. For instance, although the case was charged in April 2008, there are no reports of proceedings before April 2010. The next reports of proceedings are for dates in December 2010, February 2011, April 2011, and May 2011. No reports of proceedings exist between May 2011 and May 2012. -2- ¶9 That noted, we relate the relevant pretrial proceedings based on the record as it exists. On April 23, 2008, the State charged defendant. On July 23, 2008, the trial court appointed Assistant Public Defender Thomas McCulloch to represent defendant. On August 11, 2008, defendant was released on bond. He remained out of custody until his trial ended. ¶ 10 Between August 2008 and November 2011, the case was continued multiple times. The orders granting these continuances expressly stated that they were by agreement, the sole exception being an order granting a continuance from May 8, 2009, to May 27, 2009 (but even that order did not reflect a State objection). On April 27, 2011, the trial court set the case for pretrial on July 29, 2011, and for trial on August 8, 2011. 1 On July 22, 2011, the court struck the August 8, 2011, trial date. 2 On July 29, 2011, the trial court set the case for pretrial on December 9, 2011, and for trial on December 12, 2011. 3 Effective November 1, 2011, McCulloch retired and was replaced by Assistant Public Defender Beth Peccarelli. On November 22, 2011, Peccarelli moved for a continuance. Peccarelli explained that, before being assigned to defendant’s case, she had scheduled December 5, 2011, for a prescreen for a medical procedure and anticipated that the procedure would occur on December 12, 2011, or immediately thereafter. She requested a continuance because she anticipated being unavailable and needed access to transcripts of proceedings in which McCulloch had represented defendant. On December 2, 2011, the trial court entered an agreed order granting the continuance. The court noted that the State had answered 1 There is a transcript from April 27, 2011, but the only order from that date is an exhibit sheet relating to a hearing held on that date. 2 The order from July 22, 2011, does not indicate why the August 8 date was stricken. There is no report of proceedings for July 22, 2011. 3 As noted, there are no reports of proceedings for July 2011. -3- ready for a December 12 jury trial but did not object to the continuance. The court continued the cause to January 26, 2012, to “reset” the jury trial. ¶ 11 Although, as noted, the State had answered ready for trial in December 2011, on March 9, 2012, it moved for leave to admit other-crimes evidence against defendant. On March 15, 2012, the parties agreed to continue the cause to April 19, 2012. ¶ 12 The common-law record contains an order from April 19, 2012, stating that the parties appeared before the trial court and that the case was continued by agreement to May 9, 2012. The official reports of proceedings contain no transcript or other report of the April 19, 2012, hearing (see Ill. S. Ct. R. 323(a) (eff. July 1, 2017)). Defendant’s original and amended postconviction petitions included uncertified excerpts from a purported transcript of the April 19, 2012, proceeding. Later, when the amended petition reached an evidentiary hearing, the full certified transcript was supplied. Because our review of the trial court’s decision at the evidentiary hearing is based on that full transcript, we reproduce all relevant portions here. ¶ 13 At the April 19, 2012, hearing, after the parties clarified for the trial court that the hearing was for the purpose of resolving pretrial motions, defense counsel remarked, “We do have one issue prior to starting.” The following exchange occurred: “MS. PECCARELLI: [Defendant] came in early this *** afternoon to talk to me. He and his family have hired a private attorney, Brian Dosch, ***, out of Chicago. Mr. Dosch was unable to be here today, but he is available to—he has set aside the whole day May 9th and can come to court. I am letting [t]he [c]ourt know that, and I have got Mr. Dosch’s card that I have Xeroxed. -4-  THE COURT: Until Mr. Dosch decides to come here and until he decides that he wants to take this case on without any further continuances, we are going to keep forging ahead, because we are getting close to half a decade. It’s four years old next week. So if Mr. Dosch wants to come in and represent you, I will not give him a continuance. So you better tell him that, because if he thinks he can come in here two or three days before we start the jury trial and tell me, ‘oh, I am just coming into this case, Judge, I know nothing about it,’ then you get a lawyer on trial who knows nothing about your case, because I am not going to grant a continuance. *** So, Ms. Peccarelli *** is coming in after another lawyer has been able to take the case up to four years old. I am not letting a third lawyer come into the case and tell me ‘I am just coming into this case and I think I need another four or five years to get ready.’ Okay? [DEFENDANT]: Okay. THE COURT: Do you understand that? [DEFENDANT]: I understand that. THE COURT: Tell him how serious I am about this. If he wants to come in and he wants to file an appearance, then *** I am happy to have him do that, but then you are set for trial in less than a month. [DEFENDANT]: I understand that, Your Honor. -5-  THE COURT: He is going to have to shut down his law office and go through all the discovery and look at all the interviews and be ready to go when I call your case on May 11th.[4] Now, what’s next?” (Emphases added.) ¶ 14 At the end of the hearing, the trial court admonished defendant that, if he failed to appear for trial, the State could “go forward and try [him] in [his] absence.” 5 The court added: “Now, the next thing I want to remind you [of] is that when you leave the courtroom today, you should call [Dosch] and you should tell [Dosch] that no matter what we are going to trial in May. If he wants to come in and he feels he can gear up and go and effectively represent you, I welcome him here. He may choose not to, because the time is late now. We have used up four years of different lawyers coming in and going out. He may choose that he doesn’t think he can gear up and be ready to proceed and defend you. He may not file an appearance. It’s your obligation to tell him it’s set for trial, and I told you I would not continue.” (Emphases added.) 4 Although the trial court’s order of December 2, 2011, states that the court intended to reset the trial date at the next hearing on January 26, 2012, the appellate record contains no report of proceedings or order from January 26, 2012, or any formal resetting of the trial date between the December 2, 2011, and April 19, 2012, hearings. However, the trial court and the parties appeared to assume at the April 19, 2012, hearing that the case was previously set for trial in May 2012. According to Peccarelli’s testimony at the third-stage hearing, a trial date of May 14, 2012, was set on January 26, 2012. 5 The trial court’s remarks at the end of the hearing were not included in the partial transcript submitted with the original and amended postconviction petitions. -6- ¶ 15 The hearing concluded: “MS. PECCARELLI: Could we get May 9th? *** Wednesday at 9:00 to see whether or not Mr. Dosch does in fact—because he has let [defendant] know that that’s a date that he has the full day and come in [sic]. And either he will show up and file his appearance or he won’t, and we will be ready on the 11th to deal with whatever pretrial matters there are. THE COURT: We could use May 9th. If Mr. Dosch is planning to come in, [defendant] should call him today. MS. PECCARELLI: He will. THE COURT: He is probably going to need your discovery before May 9th. He needs to know that I am not inclined to grant any more continuances.” (Emphasis added.) The court’s order indicated that the matter was continued to two dates: May 9, 2012, and May 11, 2012. The May 11 date was for pretrial. The May 9 date was, per the above colloquy, for the court to determine whether Dosch would substitute as defendant’s attorney. ¶ 16 On May 9, 2012, the trial court heard two State motions relating to testimony by minors and evidence of the prior convictions of defendant and a defense witness. The court remarked that it was unavailable on May 11, 2012, for pretrial and would postpone some pretrial matters until May 14, 2012, the day of trial. The State noted that it was ready for trial. The following exchange ensued between Peccarelli and the trial court: “MS. PECCARELLI: *** Judge, we did talk to the private attorney and he indicated that without a guarantee that he would get a continuance to prepare, he would not be able to come in. And [defendant] has informed me last night that he did not believe that -7-  his attorney was planning to appear because of the inability to have assurances that he would get a new date. THE COURT: Well, last month we passed four years on this case so I think it’s due for a resolution. Are you prepared then, Ms. Peccarelli? MS. PECCARELLI: Yes, Judge, I anticipate we will be ready. ***.” ¶ 17 On May 14, 2012, defendant’s jury trial began. On May 17, 2012, the jury found him guilty of all 11 charges. Defendant filed a posttrial motion contending, inter alia, that the trial court had denied him his constitutional right to counsel of his choice. Defendant then obtained new counsel, who filed a supplemental posttrial motion incorporating all the contentions in the original motion. The trial court denied the supplemental motion, sentenced defendant to concurrent prison terms of natural life on the counts of predatory criminal sexual assault of a child and five years on the counts of criminal sexual abuse. The court denied defendant’s motion to reconsider the sentences. ¶ 18 2. Direct Appeal (Dixon I) ¶ 19 On direct appeal, defendant was represented by the same counsel who filed the supplemental posttrial motion. Defendant contended that (1) the evidence was insufficient as to one charge, (2) the trial court abused its discretion in admitting expert testimony on child sexual abuse and disclosure, and (3) the statute mandating life sentences for predatory criminal sexual assault of a child was unconstitutional. Dixon I, 2013 IL App (2d) 120986-U, ¶ 2. Appellate counsel did not raise the counsel-of-choice issue. We affirmed. Id. -8- ¶ 20 C. Postconviction Proceedings ¶ 21 1. Second-Stage Postconviction Proceedings ¶ 22 On October 24, 2014, defendant filed a pro se petition under the Act, contending that the trial court denied him his constitutional right to counsel of his choice and that appellate counsel was ineffective for failing to raise this claim. The postconviction court advanced the petition to the second stage under the Act and appointed counsel for defendant. In his second amended petition, defendant reasserted that appellate counsel was ineffective for failing to contend that the trial court denied defendant his right to counsel of his choice. 6 Defendant alleged that, after Peccarelli had spent only about five months as his attorney, he decided he wanted Dosch instead. Further, although Dosch would need a continuance, the trial court stated flatly that it would not grant one. ¶ 23 The second amended petition attached affidavits from defendant, Peccarelli, and Dosch. These affidavits were created only after defendant’s direct appeal. ¶ 24 The second amended petition also attached correspondence between defendant and appellate counsel to support defendant’s allegation that appellate counsel was ineffective for failing to obtain a complete transcript of the hearing of April 19, 2012. In a letter dated April 18, 2014, appellate counsel wrote to defendant, “You don’t need all the transcripts to do a [postconviction petition]. The facts are thoroughly stated in the Briefs and Appellate Court decision. The original transcripts are with the Clerk of the Circuit Court ***. I don’t have copies. ***.” In a letter dated May 16, 2014, defendant acknowledged receipt of “partial transcripts” from appellate counsel. Defendant disagreed with appellate counsel’s advice that defendant did not need all the transcripts to support his postconviction claim that he was denied his right to counsel of his choice. Defendant 6 The second amended petition also contended that trial counsel was ineffective for failing to subject the State’s case to meaningful adversarial testing. Defendant does not now raise any issue as to this claim. -9- stated that he particularly needed the transcript that “show[ed] how the trial judge stated he would not allow the attorney [whom defendant] retained time to prepare for trial.” Also, defendant recalled that, in 2012, appellate counsel told him that he would need $1,500 to purchase “the trial transcripts/record on appeal.” Defendant noted that he had paid the $1,500 and, thus, wondered why appellate counsel had not purchased the April 19, 2012, transcript. Defendant “renew[ed] [his] request” to counsel for “all [the] transcripts/record on appeal.” In a letter dated June 7, 2014, appellate counsel responded that he had obtained the “trial transcripts” but that defendant was now requesting transcripts for “a date prior to trial.” Appellate counsel “never ordered that.” He told defendant to contact the court reporters and order copies of the transcripts he wanted. ¶ 25 The State moved to dismiss the second amended petition. Responding to the counsel-of- choice claim, the State argued that, when defendant sought to discharge Peccarelli and hire Dosch, his case had been pending for almost four years and he had been out on bond for nearly as long. Dosch never appeared in court, and the record did not show that defendant was dissatisfied with Peccarelli’s representation. Moreover, when defendant first told the trial court that he intended to hire Dosch, Peccarelli was ready for trial. Finally, defendant had not moved in writing to continue the trial, as required by statute (see 725 ILCS 5/114-4(a) (West 2012)). The State concluded that there was no merit to the claim that the trial court denied defendant his right to counsel of his choice, and, therefore, appellate counsel was not ineffective for not raising that claim. ¶ 26 The postconviction court dismissed the second amended petition. On the counsel-of-choice claim, the court noted that a defendant’s right to counsel of choice is not absolute but may be denied when exercising that right would unduly interfere with the judicial process. See People v. Montgomery, 2023 IL App (3d) 200389, ¶ 19. The court noted further that Dosch never filed an appearance, a motion for substitution of counsel, or a motion to continue the case. He did not - 10 - appear in court on either April 19, 2012, or May 9, 2012. Peccarelli also failed to move to continue the case. Moreover, defendant had been out of custody from August 2008 through his trial and failed to exercise due diligence in obtaining new counsel. Defendant never expressed dissatisfaction with Peccarelli’s representation or articulated why he wanted new counsel. Also, nothing in the record showed that defendant had any difficulty cooperating with Peccarelli, who had represented him for about six months when she first told the trial court that defendant wanted Dosch to represent him. ¶ 27 2. Postconviction Appeal (Dixon II) ¶ 28 On appeal from the dismissal of the second amended petition, this court, over a dissent, reversed the dismissal and remanded the cause for third-stage proceedings. Dixon II, 2024 IL App (2d) 220399-U, ¶ 44. ¶ 29 3. Third-Stage Postconviction Hearing ¶ 30 On remand, at the evidentiary hearing, the postconviction court considered both documentary evidence and testimony. Of primary importance as to the documentary evidence, the court admitted the full certified transcript of the April 19, 2012, hearing and the correspondence between defendant and appellate counsel regarding obtaining transcripts of that hearing and the May 9, 2012, hearing. Also, the court admitted a copy of Dosch’s death certificate to establish why Dosch was not testifying at the hearing. ¶ 31 The postconviction court also admitted the affidavits of defendant, Peccarelli, and Dosch, but because these were not in the record on direct appeal, they do not directly support a claim that appellate counsel was ineffective. ¶ 32 We turn to the testimony at the hearing. Peccarelli testified as follows. When she first appeared in the case on November 22, 2011, she was not prepared to go to trial on the current trial - 11 - date set for the following month. She explained that the discovery was voluminous, that she had to request transcripts, and that she had to review the case file and become familiar with the facts and witnesses. Further, she had a medical procedure scheduled soon. On November 22, 2011, Peccarelli filed a motion to continue the cause. The State did not oppose the motion, and the trial court continued the cause to January 26, 2012. On that date, the court set the matter for pretrial and trial in May 2012. 7 On March 15, 2012, the court heard argument on the State’s motion in limine. Peccarelli appeared in court with defendant only three times before the case was set for trial. ¶ 33 Asked about her attorney-client relationship with defendant, Peccarelli testified that their conversations were usually in the hallway outside the courtroom. The conversations were “brief because on any given day [Peccarelli] had five or six other courtrooms [she] had to be in at the same time.” “Pretty much every time [they] spoke,” defendant told Peccarelli that he wanted to hire private counsel. ¶ 34 Peccarelli testified that, on April 19, 2012, defendant visited her office with two or more companions. Defendant and the others “gave [Peccarelli] the impression that they had retained” private counsel for defendant. ¶ 35 At this point, the State made a continuing objection to any testimony about the conversations between Peccarelli and defendant, on the ground that the conversations were off the record and thus irrelevant to whether appellate counsel was ineffective. The postconviction court overruled the objection. ¶ 36 Peccarelli testified about the proceedings in court on April 19, 2012. Her testimony was consistent with the transcript of the proceeding. She related that, after the hearing, she told Dosch 7 As noted, the record contains no report of proceedings or order from January 26, 2012. - 12 - what the trial court had said. Dosch told her he would not file an appearance if he could not be “guaranteed a continuance.” ¶ 37 On cross-examination, Peccarelli testified that she spoke to Dosch about two days before the April 19, 2012, hearing. On May 9, 2012, she appeared in court, but Dosch did not. Dosch never filed an appearance or a formal motion to continue the trial past the set date of May 14, 2012. Peccarelli reiterated that Dosch would not file an appearance without being “guaranteed a continuance.” ¶ 38 Defendant testified about the circumstances preceding and following the trial. The State made a continuing objection to the admission of evidence that was not of record when appellate counsel represented defendant. The postconviction court sustained the objection. ¶ 39 Defendant then testified that, through his family, he retained Dosch “a little bit before” March 9, 2012. Before April 19, 2012, defendant met with Dosch and personally paid him the $5,000 cash retainer that defendant had raised. Dosch told defendant that he could not appear in court on defendant’s case until May 9, 2012. His family paid the $15,000 balance on Dosch’s bill sometime before April 19, 2012. When defendant paid Dosch the retainer, defendant did not know that the trial was scheduled for May 14, 2012. He hired Dosch because Dosch had shown “interest” in the case. ¶ 40 The postconviction court denied the State’s motion for a directed finding. The State then called appellate counsel, who testified as follows. He had practiced law for 44 years, exclusively as a criminal defense lawyer. At some point after the trial, defendant hired him. Appellate counsel reviewed the pending posttrial motion and filed a supplemental posttrial motion, which specifically adopted all the arguments in the original motion, including that the trial court denied defendant his - 13 - constitutional right to the counsel of his choice. On appeal, counsel chose not to raise this claim of error. Asked why he so chose, counsel testified: “Well, no lawyer, and I know Brian Dosch, he never appeared on a motion before the trial court *** to substitute counsel, so the Judge didn’t deny anything. The only information that I had was the colloquy between [Peccarelli] and [the trial court] that Mr. Dosch called her, said he would like to come in, and [the trial court] replied, ‘He’s not getting a continuance, but if he’s ready, he can proceed.’ So the—there’s no motion to substitute, there’s no ruling by the judge, and whatever circumstances those are are [sic] outside of the record and, perhaps, someone could raise them in post-conviction proceedings. But in my legal opinion, *** there’s no facts to raise on direct appeal.” ¶ 41 Appellate counsel testified that, to his knowledge, asserting the right to substitute counsel of one’s choice “requires a lawyer to appear and be presently ready and available to try a case or to appear in a case.” In this case, Dosch did not appear. Further, in the exercise of his professional judgment, appellate counsel decided that the three issues he did raise all had more likelihood of success than did the counsel-of-choice issue. He did not want to “dilute *** what [he] thought was meritorious.” ¶ 42 On cross-examination, appellate counsel testified that defendant paid him $1,500 to obtain the transcripts of the trial. Asked whether he ordered the transcript of the April 19, 2012, pretrial hearing, appellate counsel testified, “I don’t recall what I ordered, but I ordered whatever was needed for the direct appeal.” Asked whether he had been aware of the trial court’s duty of inquiry when a defendant asks to substitute counsel of his choice, appellate counsel testified, “Yes. He’s supposed to. But I don’t see a motion for substitution of counsel and there was no proceeding.” - 14 - ¶ 43 After hearing arguments, the postconviction court issued a written opinion and order granting defendant’s petition. The opinion made the following findings of fact. Sometime before April 19, 2012, defendant hired Dosch to represent him in this case. Defendant and his family paid Dosch $20,000 for this representation. Dosch told defendant that he would need time to prepare for trial. At the April 19, 2012, hearing, Peccarelli presented Dosch’s business card to the trial court. ¶ 44 The postconviction court further found, based on the transcript of the April 19, 2012, hearing, that the trial court “did not inquire of the defendant *** as to his reason for wanting new counsel [or] inquire as to defendant’s cooperation with his current counsel.” Dosch did not appear at the May 9, 2012, hearing. The postconviction court found that “due to [the trial court’s] statements to Attorney *** Peccarelli and the defendant *** on April 19, 2012, to tell his attorney that he would not grant a continuance to Attorney Dosch if he entered an appearance in this case, Attorney Dosch did not enter an appearance in this case.” ¶ 45 The postconviction court noted as follows: “The State argued [here] that Attorney Dosch never filed an appearance, never filed a motion for substitution of attorney, never filed a motion for a continuance, and never actually appeared. The State argued that Attorney Dosch was not ready, willing, [and] able to appear on defendant’s case. While some of these statements are true, the State’s argument ignores the fact that Attorney Peccarelli and the defendant had informed [the trial court] that Attorney Dosch had agreed to represent the defendant in this case and he would need a continuance to be able to be prepared for trial.” The postconviction court recounted, inter alia, the trial court’s remark that, if Dosch were to ask for additional time because he “kn[ew] nothing about” defendant’s case, then defendant would - 15 - “get a lawyer on trial who kn[ew] nothing about [the] case,” because the trial court did not intend to grant Dosch a continuance. ¶ 46 The postconviction court rejected the State’s argument that, before the end of the April 19, 2012, hearing, the trial court had softened its position on whether to grant defendant another continuance. The postconviction court noted that, before telling defendant that he was “ ‘not inclined’ ” to grant any more continuances, the trial court stated repeatedly that it would flatly refuse to grant any continuances. The postconviction court also noted Peccarelli’s explanation on May 9, 2012, as to why Dosch did not appear that day. The postconviction court concluded that the reason Dosch did not appear on May 9, 2012, or enter an appearance was that the trial court “had told the defendant to tell his attorney that he was not going to grant a continuance.” ¶ 47 The postconviction court continued: “With these facts in mind, the trial court was required to do a balancing test to determine if the defendant’s hiring of a private attorney was a delaying tactic. In order to conduct this balancing test, the trial court needed to make inquiries [of] the defendant to determine if in fact this was solely a delaying tactic. The trial court emphatically told the defendant he [sic] was not going to grant a continuance for his private attorney to be prepared for trial because the case was 4 and ½ years old at that time. The trial court made assumptions that the private attorney would need another 4 and ½ years to be ready for trial, without making inquiries. Attorney Peccarelli was able to be ready to try the case within five months of the trial date being set. Without the proper inquiries of the defendant by the trial court, as required by [People v. Segoviano, 189 Ill. 2d 228 (2000),] and [People v. Ramsey, 2018 IL App (2d) 151071,] as well as the trial court repeatedly telling the defendant that he [sic] would not - 16 -  grant Attorney Dosch a continuance to allow Attorney Dosch to prepare for trial, there is evidence that the trial court abused its discretion when [it] effectively denied the defendant his Sixth Amendment right to counsel of his choice, which was Attorney *** Dosch. The review of the common law record and the transcripts of the proceedings of April 19, 2012[,] and May 9, 2012, by [appellate counsel] would have provided [him] with a meritorious issue on direct appeal that the trial court had abused its discretion when it failed to inquire into the circumstances surrounding his request to be represented by Attorney Dosch. Had [appellate counsel] reviewed the common law record as well as the transcripts of [the] proceedings from April 19, 2012[,] and May 9, 2012, and asserted on direct appeal a claim of a violation of the defendant’s Sixth Amendment right to counsel of choice as requested by the defendant, it is probable that the Second District Appellate Court would have granted *** the defendant a new trial.” ¶ 48 The postconviction court granted defendant a new trial. The State timely appealed. ¶ 49 II. ANALYSIS ¶ 50 A. Introduction–Governing Principles ¶ 51 On appeal, the State argues that the postconviction court erred in finding that defendant satisfied the test for ineffective assistance of appellate counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). ¶ 52 We begin with our standard of review. At a third-stage evidentiary hearing under the Act, the defendant “must show by a preponderance of the evidence that there was a substantial violation of a constitutional right during his trial proceedings.” People v. McCoy, 2026 IL 131565, ¶ 50. In general, if a postconviction court grants relief after a third-stage evidentiary hearing under the Act, we will not disturb that judgment unless it is manifestly erroneous. People v. English, 2013 IL - 17 - 112890, ¶ 23. However, this deferential standard applies only insofar as the judgment rests on the postconviction court’s exercise of its fact-finding prerogative. Id. Insofar as a judgment is based on evidence that “ ‘consists of depositions, transcripts, or evidence otherwise documentary in nature, a reviewing court is not bound by the [postconviction] court’s findings and may review the record de novo.’ ” People v. Morgan, 2025 IL 130626, ¶ 51 (quoting Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453 (2009)). Also, where, as here, the judge presiding over the third-stage hearing did not preside over the defendant’s trial, the postconviction court has no particular familiarity with, or expertise in, the case to which we must accord special deference. See English, 2013 IL 112890, ¶¶ 23-24. Thus, to the extent that the evidence here is documentary, our review is de novo. Id. ¶ 24. Therefore, based on the foregoing authority, we shall apply deferential review only to findings based on live testimony. ¶ 53 Here, the postconviction court received both documentary evidence and testimony. However, we agree with the State’s argument below that most of the testimony and documents were not relevant to the claim. Counsel’s performance on direct appeal cannot be attacked based on nonrecord information that existed when he briefed the appeal, much less nonrecord information that was created well afterward. Therefore, we disregard the affidavits and testimony of Dosch, Peccarelli, and defendant, with an important exception to be noted. Infra ¶ 85. However, because appellate counsel testified to matters within his personal knowledge that were relevant to his performance, we do consider his testimony. Insofar as the postconviction court’s factual findings drawn from that testimony affect our analysis, we defer to those findings unless they are manifestly erroneous. ¶ 54 We move to the substantive principles governing this case. To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s performance was objectively - 18 - unreasonable and (2) it is reasonably probable that absent counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88; People v. Albanese, 104 Ill. 2d 504, 525 (1984). Strickland applies to both appellate and trial counsel. People v. Petrenko, 237 Ill. 2d 490, 497 (2010). “A [defendant] who contends that appellate counsel rendered ineffective assistance of counsel must show that the failure to raise an issue on direct appeal was objectively unreasonable and that the decision prejudiced [the defendant].” People v. Childress, 191 Ill. 2d 168, 175 (2000). “Unless the underlying issue is meritorious, [the defendant] suffered no prejudice from counsel’s failure to raise it on direct appeal.” Id. ¶ 55 A defendant has the constitutional right to counsel of his choice. People v. Curry, 2013 IL App (4th) 120724, ¶ 48. The right derives from the sixth amendment (People v. Holmes, 141 Ill. 2d 204, 217 (1990)) and is fundamental yet limited (People v. Burrell, 228 Ill. App. 3d 133, 141- 42 (1992)). The defendant may not use the right as a weapon to thwart the administration of justice. Curry, 2013 IL App (4th) 120724, ¶ 48. The trial court has discretion to determine whether the defendant’s right to select counsel would unduly interfere with the orderly process of judicial administration. Burrell, 228 Ill. App. 3d at 142. Indeed, “[i]n balancing the judicial interest of trying the case with due diligence and the defendant’s constitutional right to counsel of choice, the court must inquire into the actual request to determine whether it is being used merely as a delaying tactic.” (Emphasis added.) Id. The factors that bear on whether a request for new counsel is a mere delaying tactic include (1) whether the defendant articulates an acceptable reason for wanting new counsel, (2) whether the defendant has continuously been in custody, (3) whether the defendant informs the trial court of his efforts to obtain counsel, (4) whether the defendant has cooperated with his current counsel, and (5) how long current counsel has represented the defendant. People v. Ramsey, 2018 IL App (2d) 151071, ¶ 24. The trial court’s denial of the right to select counsel - 19 - will not be overturned on appeal absent an abuse of discretion. People v. Segoviano, 189 Ill. 2d 228, 245 (2000). ¶ 56 B. Ineffective Assistance of Appellate Counsel ¶ 57 In Dixon II, we held, based on the partial transcript of the April 19, 2012, hearing and other documentary evidence, that defendant made a substantial showing that his appellate counsel was ineffective for failing to argue that the trial court denied him his right to counsel of his choice. Dixon II, 2024 IL App (2d) 220399-U, ¶ 23. We had two bases for this conclusion: (1) “the trial court did not inquire sufficiently into defendant’s request to be represented by the identified counsel of his choice [Dosch],” and (2) “based on the limited record defendant could make because of the trial court’s summary rejection, defendant’s request for leave to obtain counsel of his choice was not a delaying tactic and would not have unduly interfered with the administration of justice.” Id. Now, after a third-stage evidentiary hearing on the ineffectiveness claim, we reach the same conclusions again but amplify our reasons as follows. ¶ 58 1. Performance Prong ¶ 59 The State contends first that defendant failed to prove that appellate counsel’s performance met the first prong of the Strickland test, unreasonable performance. The State argues