People v. Wells ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Wells, 2012 IL App (1st) 083660Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MICHAEL WELLS, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-08-3660
Filed March 9, 2012
Rehearing denied April 10, 2012
Held Where defendant was initially charged with two counts of aggravated
(Note: This syllabus stalking based on a violation of an order of protection and later the State
constitutes no part of filed an indictment identical to the earlier information with the exception
the opinion of the court of correction of the case number of the order of protection that was
but has been prepared allegedly violated, defendant’s convictions under the indictment and the
by the Reporter of sentence imposed were upheld, notwithstanding defendant’s contention
Decisions for the that the State failed to charge the acts that constituted the aggravating
convenience of the factor within 120 days in violation of defendant’s right to a speedy trial,
reader.)
since the only difference between the two charging instruments was the
case number, no new or additional charges were brought against
defendant, compulsory joinder did not apply, and the correction of the
case number was a formal defect the State could have corrected under
section 111-5 of the Code of Criminal Procedure.
Decision Under Appeal from the Circuit Court of Cook County, No. 05-CR-7929; the
Review Hon. Clayton J. Crane, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Heidi Linn Lambros, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Miles
J. Keleher, and Sheilah O’Grady-Krajniak, Assistant State’s Attorneys,
of counsel), for the People.
Panel JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justices J. Gordon and Howse concurred in the judgment and opinion.
OPINION
¶1 Michael Wells was found guilty of two counts of aggravated stalking and subsequently
was sentenced to three years’ imprisonment. On appeal, defendant argues that his convictions
for aggravated stalking should be reduced to simple stalking because the State failed to
charge the acts that constituted the aggravating factor within 120 days in violation of
defendant’s right to a speedy trial.
¶2 On March 11, 2004, Lakita Strawder and defendant appeared before the trial court to
advance an emergency order of protection. The trial court entered a plenary order of
protection for Strawder and her children against defendant, her estranged husband, continued
until April 1, 2004. The conditions of the order of protection were published to the court. The
judge asked defendant if he understood, he responded that he did, and the judge noted on the
record, “Acknowledge receipt.” The order of protection was initially entered under case
number 04-437243. However, a second order of protection was entered, stating at the top of
the first page “Corrected Case # 04-437096.” The second and third pages of the order of
protection show the number 04-437243 crossed out and 04-437096 handwritten below it. The
orders of protection were identical, except the case number. The plenary order of protection
in case number 04-437096 was continued at subsequent court dates.
¶3 On April 13, 2004, in case number 04 CR 9190, defendant was charged by information
with two counts of aggravated stalking. Count I alleged that defendant committed the offense
of aggravated stalking
“in that HE, KNOWINGLY AND WITHOUT LAWFUL JUSTIFICATION, ON AT
LEAST TWO SEPARATE OCCASIONS, PLACED LAKITA [STRAWDER] UNDER
SURVEILLANCE, TO WIT: ON MARCH 11, 2004, [DEFENDANT] TELEPHONED
LAKITA [STRAWDER] AND INDICATED THAT HE WAS WATCHING HER
RESIDENCE, AND ON MARCH 12, 2004, [DEFENDANT] TELEPHONED LAKITA
[STRAWDER] AND INDICATED THAT HE WAS WATCHING HER, AND
[DEFENDANT] TRANSMITTED A THREAT TO LAKITA [STRAWDER] OF
IMMEDIATE OR FUTURE BODILY HARM, TO WIT: ON MARCH 11, 2004,
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[DEFENDANT] THREATENED TO KILL LAKITA [STRAWDER], AND IN
CONJUNCTION WITH COMMITTING THE OFFENSE OF STALKING,
[DEFENDANT] VIOLATED AN ORDER OF PROTECTION UNDER CASE
NUMBER 04-437243, IN VIOLATION OF CHAPTER 720, ACT 5, SECTION 12-
7.4(A)(1) OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND
Contrary to the Statute, and against the peace and dignity of the People of the State of
Illinois.”
¶4 Count II alleged that defendant committed the offense of aggravated stalking
“in that HE, KNOWINGLY AND WITHOUT LAWFUL JUSTIFICATION, ON AT
LEAST TWO SEPARATE OCCASIONS, PLACED LAKITA [STRAWDER] UNDER
SURVEILLANCE, TO WIT: ON MARCH 12, 2004 [DEFENDANT] WENT TO
LAKITA [STRAWDER’S] RESIDENCE AND LEFT A NOTE ON HER MOTOR
VEHICLE, AND ON MARCH 12, 2004, [DEFENDANT] WENT TO LAKITA
[STRAWDER’S] RESIDENCE ARMED WITH A FIREARM AND DISCHARGED
THAT FIREARM, AND [DEFENDANT] TRANSMITTED A THREAT TO LAKITA
[STRAWDER] OF IMMEDIATE OR FUTURE BODILY HARM, TO WIT: ON
MARCH 11, 2004, [DEFENDANT] THREATENED TO KILL LAKITA
[STRAWDER], AND IN CONJUNCTION WITH COMMITTING THE OFFENSE OF
STALKING, [DEFENDANT] VIOLATED AN ORDER OF PROTECTION UNDER
CASE NUMBER 04-437243, IN VIOLATION OF CHAPTER 720, ACT 5, SECTION
12-7.4(A)(1) OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND
Contrary to the Statute, and against the peace and dignity of the People of the State of
Illinois.”
¶5 In January 2005, defendant filed a “motion to dismiss charge pursuant to 725 ILCS
5/114-1.” In the motion, defendant argued that the case number 04-437243 was stricken by
the State and cannot be the basis for the charge of aggravated stalking.
¶6 On April 1, 2005, the State filed an indictment against defendant in the instant circuit
court case number 05 CR 7929. The State charged defendant with two counts of aggravated
stalking. Both counts are identical to the previously charged counts, except the alleged
violated order of protection stated “case number 04-437096.” The State then nol-prossed the
first information in case number 04 CR 9190.
¶7 On July 22, 2005, defendant informed the trial court that he would like to represent
himself. The trial court admonished defendant about proceeding pro se, but allowed
defendant to represent himself. Defendant then made an oral motion to quash the indictment
on speedy trial grounds. The trial court conducted a hearing on defendant’s motion on
August 31, 2005. At the hearing, defendant argued that the 13-month delay in filing the new
indictment was “presumptively prejudicial” and that he was not “apprised with reasonable
certainty of the precise offense in which he was charged, enabling the Defendant to prepare
a proper defense.” The State responded that the new indictment did not raise new facts, but
instead “contained the exact words, exact same dates, exact same victim, everything, just
changed the order of protection that was in effect.” The trial judge found that the new
indictment alleged the same facts as in the first charges and denied defendant’s motion.
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¶8 On September 22, 2005, defendant, now represented by counsel, filed a motion to
reconsider defendant’s motion to quash the indictment. Defendant argued that no valid order
of protection was issued in case No. 04-437096 and the continuances under the previous case
could not be charged against defendant. The State maintained that there were no new and
additional charges alleged in the indictment and defendant was on notice of the charges
against him. The State asserted that it was “a technical error of a number of an order of
protection which was an incorrect error in the original indictment.[1] And that was corrected
by a reindict.” At the October 2005 hearing on the motion to reconsider, the trial court denied
the motion, finding that defendant was placed on notice as to the order of protection and
defendant was informed “of the appropriate charges in order for him to defend himself in this
case.”
¶9 In September 2007, defendant, represented by a new trial counsel, filed a motion to
dismiss the indictment based on a violation of defendant’s right to a speedy trial. At the
hearing on the motion, defense counsel argued that the new indictment brought a new charge
against defendant that was based upon a different order of protection. Defense counsel
asserted that the new charges were subject to compulsory joinder and continuances on the
original charges were not attributable to defendant under the new indictment. The State
responded that the charges from the new indictment were not subject to compulsory joinder
because the charges were based on the same facts and the only change was the number of the
order of protection. The trial court found that the only difference between the two charging
instruments is the number of the order of protection and “[t]here’s no question the facts arise
the same [sic], everything arises the same.” The court held that defendant was “informed of
what act he is charged with, the date, [and] the individuals involved” and denied the motion
to dismiss.
¶ 10 Since defendant has raised one issue, the speedy trial violation, we will only discuss the
evidence at trial as necessary for this appeal.
¶ 11 At defendant’s bench trial, Strawder testified that she and defendant were married in
2000, but separated in 2002. On March 11, 2004, she went to court to obtain a restraining
order against defendant, which the trial court issued. After court, defendant asked Strawder
if they could get back together. When Strawder responded in the negative, defendant replied
that if he could not have her, no one would. Throughout that day, Strawder received
continuous calls from defendant. She recognized defendant’s voice when she answered the
phone. Defendant again asked Strawder to get back together and when she said no, defendant
threatened to kill her. That night, she started to leave the house with her children, but saw
defendant driving down her street. Defendant said he wanted to talk to her, but then
threatened to kill her. Defendant called her at 4 a.m. and threatened to kill her again.
¶ 12 The next morning, March 12, Strawder found a note under her windshield wiper. She
recognized it as defendant’s handwriting. The note said, “Don’t get caught coming out of my
house again you’ve been warned.” She reported the incident to the police. At around 11 p.m.
that night, Strawder was inside her residence with her children and a friend, Eric Lemon. She
1
The original charge, as pointed out above, was by information.
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was sitting by a window looking outside when she saw defendant running toward the house
with a gun. She hit the panic button on her alarm system and called the police. Strawder went
with her children to a bedroom. She heard defendant banging on the windows and door and
then she heard gunshots. Lemon testified that he saw defendant walk onto Strawder’s porch,
bang on the door, ring the doorbell, and yell. Lemon saw defendant pull out his gun and fire
three times at the house and three times at Lemon’s truck before walking down the street.
Lemon found three bullet holes in his truck.
¶ 13 Veronica Coleman testified for the defense. She stated that she had three children with
defendant. She worked for the United States Post Office and on March 9, 2004, the branch
she worked at was robbed. She was admitted to the University of Illinois-Chicago hospital
due to stress and complications from her diabetes. She remained in the hospital from March
9 to March 16. She testified that defendant took care of the children while she was at the
hospital. She said he took the children to school and then spent the day with her until he
needed to pick the children up from school. In the evening, he was at the hospital with the
children and then drove them to Coleman’s house in South Holland.
¶ 14 Defendant testified on his own behalf. He stated that on March 11, he took the children
to school, then went to court. After court, defendant went to work and told his boss that he
could not work because of Coleman’s illness. He then went to the hospital. He testified that
he did not receive an order of protection and denied calling Strawder or leaving a note on her
car.
¶ 15 On cross-examination, defendant admitted that the plenary order of protection was issued
on March 11 and that he knew and understood the terms of the order. He admitted that he
wrote Strawder letters while incarcerated and offered to pay for the damage to Lemon’s
truck. Defendant admitted to shooting Lemon’s truck. He said he was in the vicinity of
Strawder’s house, but did not shoot at Strawder’s house or ring the doorbell.
¶ 16 The trial court found defendant guilty on both counts of aggravated stalking. Defendant
filed a motion for a new trial, including a claim that the motion to dismiss indictment should
have been granted. The trial court denied the motion. Subsequently, the trial court sentenced
defendant to a term of three years’ imprisonment.
¶ 17 This appeal followed.
¶ 18 On appeal, defendant argues that his convictions for aggravated stalking should be
reduced to stalking because his right to a speedy trial was violated when the State failed to
charge the act that constituted the aggravating factor, the violation of the order of protection,
within 120 days. Defendant contends that under the original charging instrument, he could
not have been convicted of aggravated stalking because no valid order of protection existed
in case number 04-437243. Therefore, when the State indicted defendant for committing the
same acts in violation of the order of protection in case number 04-437096, the charges were
new and additional and subject to compulsory joinder. Since the State failed to bring these
new charges within 120 days of filing the original information, his right to a speedy trial was
violated.
¶ 19 The State responds that the charges were not subject to compulsory joinder because the
indictment only changed the municipal case number for the order of protection, which did
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not constitute new and additional charges.
¶ 20 Defendants possess both constitutional and statutory rights to a speedy trial. U.S. Const.,
amends. VI, XIV; Ill. Const.1970, art. I, § 8; 725 ILCS 5/103-5(a) (West 2004). “While these
provisions address similar concerns, ‘ “the rights established by each are not necessarily
coextensive.” ’ ” People v. Woodrum, 223 Ill. 2d 286, 298 (2006) (quoting People v. Mayo,
198 Ill. 2d 530, 535 (2002), quoting People v. Hall, 194 Ill. 2d 305, 326 (2000)). Here,
defendant only asserts a violation of his statutory right to a speedy trial and has not raised a
constitutional issue.
¶ 21 Pursuant to section 103-5 of the Code of Criminal Procedure of 1963, a defendant in
custody must be tried within 120 days from the date he was taken into custody, “unless delay
is occasioned by the defendant.” 725 ILCS 5/103-5(a) (West 2004). If a defendant in custody
is not tried within the 120-day period, he must be discharged. See 725 ILCS 5/103-5(d)
(West 2004). The speedy trial period is tolled when the defendant contributes to or causes
a delay of the trial. Hall, 194 Ill. 2d at 326-27; see 725 ILCS 5/103-5(a) (West 2004).
Continuances, where defense counsel has affirmatively agreed and has not reasserted his
demand for trial, will toll the speedy trial term. See People v. Andrade, 279 Ill. App. 3d 292,
296-98 (1996); see also 725 ILCS 5/103-5(a) (West 2004). However, delays attributable to
a defendant on the original charges are not always attributable to subsequently filed charges.
Woodrum, 223 Ill. 2d at 299.
“ ‘Where new and additional charges arise from the same facts as did the original
charges and the State had knowledge of these facts at the commencement of the
prosecution, the time within which trial is to begin on the new and additional charges is
subject to the same statutory limitation that is applied to the original charges.
Continuances obtained in connection with the trial of the original charges cannot be
attributed to defendants with respect to the new and additional charges because these new
and additional charges were not before the court when those continuances were
obtained.’ ” Woodrum, 223 Ill. 2d at 299 (quoting People v. Williams, 94 Ill. App. 3d
241, 248-49 (1981)).
¶ 22 The supreme court has clarified that this rule is only applicable when the initial and
subsequent charges are subject to compulsory joinder. People v. Phipps, 238 Ill. 2d 54, 66
(2010).
¶ 23 Here, defendant contends that since the State knew about the order of protection in case
number 04-437096 when it charged defendant with aggravated stalking in April 2004, this
aggravating factor should have been charged at that time. Because the new and additional
aggravating factor was not brought against defendant until April 2005, beyond the
completion of the speedy trial term, defendant’s conviction for aggravated stalking must be
vacated and the conviction reduced to stalking. Thus, the sole question on appeal is whether
the aggravated stalking charges from the later indictment constitute new and additional
charges, subject to compulsory joinder. Since this involves a comparison of the charges and
the facts are not in dispute, this is a legal issue that we review de novo. Woodrum, 223 Ill.
2d at 300.
¶ 24 The supreme court has said that the purpose of the “new and additional charges” rule is
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to prevent a “ ‘trial by ambush.’ ” Woodrum, 223 Ill. 2d at 300 (quoting People v. Williams,
204 Ill. 2d 191, 207 (2003)). Without this rule,
“ ‘[t]he State could lull the defendant into acquiescing to pretrial delays on pending
charges, while it prepared for a trial on more serious, not-yet-pending charges. *** When
the State filed the more serious charges, the defendant would face a Hobson’s choice
between a trial without adequate preparation and further pretrial detention to prepare for
trial.’ ” Woodrum, 223 Ill. 2d at 300 (quoting Williams, 204 Ill. 2d at 207).
¶ 25 Further, the supreme court in Phipps explained:
“The rationale for the rule, therefore, centers on whether the defendant had adequate
notice of the subsequent charges to allow preparation of a defense. The focus is on
whether the original charging instrument gave the defendant sufficient notice of the
subsequent charges to prepare adequately for trial on those charges. If the original
charging instrument gives a defendant adequate notice of the subsequent charges, the
ability to prepare for trial on those charges is not hindered in any way. Thus, when the
State files the subsequent charge, the defendant will not face ‘a Hobson’s choice between
a trial without adequate preparation and further pretrial detention to prepare for trial.’
Williams, 204 Ill. 2d at 207. Rather, the defendant may proceed to trial on the subsequent
charges with adequate preparation instead of being forced to agree to further delay. In
those circumstances, the rationale for declining to attribute to the defendant delays in
connection with the original charges does not apply.” Phipps, 238 Ill. 2d at 67-68.
¶ 26 In Woodrum, the defendant was charged with child abduction. Later, the State amended
the charges to add the phrase “ ‘for other than a lawful purpose,’ ” but otherwise the
allegations were identical. Woodrum, 223 Ill. 2d at 292. The supreme court declined to hold
that the amended charges were new and additional charges because the defendant “could not
have been surprised by the subsequent charges because they were essentially the same as the
original ones.” Woodrum, 223 Ill. 2d at 301. The court found that the defendant’s right to a
speedy trial had not been violated and the delays attributable to the defendant on the previous
indictments continued to be attributable to him on the subsequent indictments. Woodrum,
223 Ill. 2d at 301.
¶ 27 In Phipps, the defendant was originally charged with and pled guilty to reckless
homicide, but later the State moved to vacate the guilty plea after the Illinois legislature
found the reckless homicide statute to be void and that the appropriate charge was aggravated
driving under the influence. Phipps, 238 Ill. 2d at 57-58. The trial court granted the motion
and the State charged the defendant with aggravated driving under the influence. Phipps, 238
Ill. 2d at 58.
¶ 28 On appeal, the supreme court reviewed both charging instruments and found that both
alleged the same conduct. Phipps, 238 Ill. 2d at 68. Additionally, reckless homicide and
aggravated driving under the influence had essentially the same elements and provided the
same penalty. Phipps, 238 Ill. 2d at 68. The supreme court observed that “[t]he critical point
for our speedy-trial analysis in this case, however, is not whether the State charged defendant
under the correct version of the reckless homicide statute, but whether the original indictment
gave defendant adequate notice to prepare his defense to the subsequent charge.” Phipps, 238
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Ill. 2d at 69. The court concluded that the aggravated driving under the influence charge was
not new and additional for speedy trial purposes. Phipps, 238 Ill. 2d at 70.
¶ 29 This court in People v. Davis, 373 Ill. App. 3d 351 (2007), considered a speedy trial
challenge. In that case, the defendant was originally charged with one count of criminal
sexual assault. Later, the defendant was indicted on two charges. The first was the original
count of criminal sexual assault and the new count alleged criminal sexual assault with an
enhanced penalty, Class X, based on a prior conviction for criminal sexual assault. Both
counts involved the same act with the same victim. Davis, 373 Ill. App. 3d at 353. On appeal,
the defendant argued that his trial counsel was ineffective for failing to move to dismiss the
criminal sexual assault based on a prior conviction because it violated his right to a speedy
trial. Davis, 373 Ill. App. 3d at 354.
¶ 30 This court found that the defendant’s right to a speedy trial was not violated and
compulsory joinder did not apply because the defendant was not charged with a new and
additional charge. Rather, the new count alleged the same facts as the first count, but with
an enhanced sentence based on the defendant’s prior conviction. Davis, 373 Ill. App. 3d at
357. The court also found that notice to the defendant was not at issue since he was
presumably aware of his prior conviction. Davis, 373 Ill. App. 3d at 358. “Count II did not
allege any new elements or new crimes for which defendant was being charged. The State
sought to raise the classification of the offense, that is, to enhance defendant’s sentence based
on his prior conviction.” Davis, 373 Ill. App. 3d at 359.
¶ 31 Here, both charging instruments alleged the same conduct with the only difference being
the number of the order of protection. Both charging instruments alleged two counts of
aggravated stalking based on acts that occurred on March 11 and 12, 2004, in which
defendant repeatedly called Strawder, left a note on her windshield wiper, came to her house
armed with a firearm and fired shots toward the house, and threatened to kill Strawder in
violation of an order of protection. The later indictment did not bring any new and additional
charges against defendant and compulsory joinder does not apply in this case. As the
supreme court has held, the focus of the rule for new and additional charges is whether the
defendant had sufficient notice of the additional charges to be able to prepare his defense.
See Phipps, 238 Ill. 2d at 67. Under the circumstances of the present case, defendant had
adequate notice to prepare his defense because the charges were identical. The only change
was to correct a technical error, an incorrect case number for the order of protection. Similar
to Davis, defendant admitted at trial that he knew of the order of protection obtained by
Strawder and the record shows that defendant was served with the order of protection in
court. The factual basis was the same for both charging instruments and defendant was
informed of the charges against him. As the supreme court found in Woodrum, “defendant
could not have been surprised by the subsequent charges because they were essentially the
same as the original ones.” Woodrum, 223 Ill. 2d at 301.
¶ 32 Further, we point out that under section 111-5 of the Code of Criminal Procedure of
1963, an indictment or information may be amended at any time to correct formal defects,
including a miswriting. 725 ILCS 5/111-5 (West 2004). “Formal amendment is warranted
especially where the defendant is not surprised or prejudiced or where the record shows he
was otherwise made aware of the actual charge.” People v. Milton, 309 Ill. App. 3d 863, 866
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(1999). “Formal defects are distinguished from substantive changes that alter the nature and
elements of the offense charged.” Milton, 309 Ill. App. 3d at 866. Formal amendments do
not implicate speedy trial rights. Milton, 309 Ill. App. 3d at 866. In the instant case, the
correction of the case number for the order of protection was a formal defect which the State
could have corrected under section 111-5. The indictment did not alter the nature of the
offense or the elements. As previously stated, it was identical to the prior charging instrument
except for the correction of the case number of the order of protection. Accordingly, the
indictment did not raise a new and additional charge when the State corrected a formal
mistake and defendant’s speedy trial rights were not implicated.
¶ 33 Based on the foregoing reasons, we affirm defendant’s conviction and sentence.
¶ 34 Affirmed.
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