Background
Shawn Kubina was charged in August 2021 with aggravated criminal sexual abuse and battery arising from a March 2021 incident involving his ex-wife, K.K. The case proceeded through a lengthy pretrial period marked by multiple changes of appointed counsel, continuances at the defense’s request, and a private investigator retained on Kubina’s behalf. Throughout this period, no written speedy trial demand was ever filed on Kubina’s behalf.
In March 2023—approximately 18 months after the original charges—the State filed two additional counts of criminal sexual assault (Class 1 felonies), based on a separate incident in which Kubina penetrated K.K. anally while she was asleep. These new charges carried a higher sentencing range than the original Class 2 felony. On January 16, 2024, the State dismissed the original charges and proceeded to trial solely on the two criminal sexual assault counts. The jury convicted Kubina on both counts, and the court sentenced him to eight years’ imprisonment after merging the two convictions.
Kubina appealed, arguing that his trial counsel was constitutionally ineffective for failing to file a written speedy trial demand under 725 ILCS 5/103-5(b), which would have triggered a 160-day trial clock. He contended that under the compulsory joinder doctrine, the subsequently filed criminal sexual assault charges would have had to be dismissed had the State not brought them within 160 days of that demand, thereby eliminating the more serious charges and their greater sentencing exposure.
The Court’s Holding
The Fifth District affirmed Kubina’s convictions, concluding that he failed to establish the prejudice prong of the Strickland v. Washington test for ineffective assistance of counsel. The court assumed without deciding that trial counsel’s failure to file a speedy trial demand may have been deficient performance, but held that Kubina could not demonstrate a reasonable probability that the outcome would have been different had counsel acted otherwise.
The court reasoned that Kubina’s prejudice argument rested on a bare assumption: that the State would have filed the additional criminal sexual assault charges more than 160 days after a hypothetical speedy trial demand, and thus those charges would have been subject to dismissal. Applying the framework from People v. Yankaway, 2025 IL 130207, and People v. Allen, 2024 IL App (5th) 220283-U, the court held that a defendant must affirmatively explain why the State would have failed to bring the case within the speedy trial window—not merely assume the State’s pretrial strategy would have remained unchanged. Because Kubina offered no such explanation, his prejudice showing was insufficient as a matter of law.
Key Takeaways
- Failing to file a speedy trial demand can support an ineffective-assistance claim only if the defendant affirmatively demonstrates that the State would not have adapted its strategy and brought the case within the statutory period—speculation or assumption is not enough.
- Under the compulsory joinder/speedy trial framework, a written demand triggers the 160-day clock for all charges subject to compulsory joinder (People v. Quigley; People v. Williams), but the mere availability of that argument does not establish Strickland prejudice without a showing of how the State would have responded.
- Courts may resolve ineffective-assistance claims solely on the prejudice prong without reaching the performance prong, and must consider what the State would likely have done had counsel acted differently—not just what the State actually did.
- This decision is filed under Illinois Supreme Court Rule 23 and is not precedential except in the limited circumstances allowed under Rule 23(e)(1).
Why It Matters
This decision reinforces the demanding nature of the Strickland prejudice inquiry in the context of procedural omissions by defense counsel. Defense attorneys and appellate practitioners must recognize that pointing to a theoretically available procedural mechanism—such as a speedy trial demand that could have triggered dismissal of upgraded charges—is not sufficient. The defendant bears the burden of affirmatively proving that the State would have failed to comply with the resulting deadline, a showing that requires actual evidence or argument about the State’s likely conduct, not mere assumptions.
For practitioners in Illinois, the decision also highlights the interplay between compulsory joinder rules and the speedy trial statute as a potential defense tool in cases where the State adds more serious charges mid-litigation. While that strategy remains viable in principle, counsel pursuing such arguments on appeal must build a factual record below regarding the State’s preparedness and litigation posture in order to satisfy Strickland‘s prejudice standard.