                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Kazenko, 2012 IL App (3d) 110529




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    AARON S. KAZENKO, Defendant-Appellee.



District & No.             Third District
                           Docket No. 3-11-0529


Filed                      July 2, 2012


Held                       Where defendant was initially charged by way of a uniform traffic ticket
(Note: This syllabus       with driving under the influence of drugs and alcohol, and on the
constitutes no part of     scheduled trial date, more than 160 days after defendant’s speedy trial
the opinion of the court   demand, the State was allowed to file an information charging driving
but has been prepared      under the influence of alcohol, the dismissal of that charge on speedy trial
by the Reporter of         grounds was reversed, because it was charged by an information, the
Decisions for the          compulsory-joinder rule did not apply, the speedy-trial period from the
convenience of the         initial charge did not apply to the later charge, and the speedy-trial term
reader.)
                           was not violated as to that charge.


Decision Under             Appeal from the Circuit Court of Will County, No. 10-DT-2060; the Hon.
Review                     Joseph C. Polito, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                  James Glasgow, State’s Attorney, of Joliet (Terry A. Mertel and Thomas
Appeal                      D. Arado (argued), both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.

                            Ted P. Hammel (argued) and David P. Smith, both of Brumund, Jacobs,
                            Hammel, Davidson & Andreano, LLC, and Kristen N. Messamore, of
                            Hammel Law Offices, P.C., both of Joliet, for appellee.


Panel                       JUSTICE CARTER delivered the judgment of the court, with opinion.
                            Justice Holdridge concurred in the judgment and opinion.
                            Presiding Justice Schmidt specially concurred, with opinion.




                                               OPINION

¶1           Defendant, Aaron S. Kazenko, was charged by way of a traffic ticket with driving under
        the combined influence of alcohol and drugs (the DUI(a)(5) charge) (625 ILCS 5/11-
        501(a)(5) (West 2010)). On the scheduled trial date, more than 160 days after defendant had
        filed a speedy trial demand, the State was allowed leave to file an amended information to
        add a charge of driving under the influence of alcohol (the DUI(a)(2) charge) (625 ILCS
        5/11-501(a)(2) (West 2010)) against defendant. Defendant filed a motion to dismiss the
        DUI(a)(2) charge on speedy-trial grounds. The trial court granted the motion to dismiss. The
        State brought this interlocutory appeal to challenge the trial court’s ruling. We reverse the
        trial court’s judgment and remand this case for further proceedings.

¶2                                                 FACTS
¶3           On December 19, 2010, defendant was charged with the original DUI(a)(5) charge in this
        case. The charge was brought against defendant on a uniform citation and complaint form,
        i.e., a traffic ticket, which was filled out by the arresting officer. The DUI(a)(5) ticket alleged
        that defendant was driving a motor vehicle while under the combined influence of alcohol
        and drugs. Defendant was released from custody on bond or recognizance on the original
        DUI(a)(5) charge while the case was pending.
¶4           On December 20, 2010, defendant filed a written speedy-trial demand as to the original
        DUI(a)(5) charge and served notice of the demand upon the State. In court, the case was
        continued on two occasions and the speedy-trial period was tolled by agreement. The case
        was eventually set for a trial date of June 3, 2011. The speedy-trial term was tolled on the
        original DUI(a)(5) charge from the initial court date of February 4, 2011, to the bench trial
        date of June 3, 2011.

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¶5         On June 2, 2011, the State filed an emergency motion for leave to file an amended
       information so that it could add a charge of DUI(a)(2) against defendant. When the case was
       before the trial court the following day, the State was allowed to file the amended
       information over defendant’s objection. Defendant subsequently moved to dismiss the
       DUI(a)(2) charge on speedy-trial grounds. A hearing was held on the motion to dismiss. At
       the conclusion of the hearing, the trial court found that the DUI(a)(2) charge was a new or
       additional charge for speedy-trial purposes and granted defendant’s motion to dismiss the
       DUI(a)(2) charge on speedy-trial grounds. The State filed a certificate of impairment and
       brought this interlocutory appeal to challenge the trial court’s ruling.

¶6                                              ANALYSIS
¶7         On appeal, the State argues that the trial court erred in granting the motion to dismiss the
       DUI(a)(2) charge on speedy-trial grounds. The State asserts that the trial court erred in
       finding that the speedy-trial term had been violated as to the subsequent DUI(a)(2) charge
       because: (1) the compulsory-joinder rule, upon which the trial court’s speedy-trial
       determination was made, does not apply to the charges in the present case because the
       original DUI(a)(5) charge was brought by way of a uniform citation and complaint form; and
       (2) even if the compulsory-joinder rule applies in the present case, the delays attributable to
       defendant as to the original DUI(a)(5) charge are also attributable to defendant as to the
       subsequent DUI(a)(2) charge because DUI is but a single offense and the subsequent
       DUI(a)(5) charge was not a new and additional charge that would have caused surprise to
       defendant or required additional preparation.
¶8         Defendant argues that the trial court’s grant of the motion to dismiss was proper and
       should be affirmed. Defendant asserts that: (1) the State forfeited the uniform-citation
       argument by failing to raise it in the trial court; (2) even if the uniform-citation argument is
       not forfeited, that rule does not apply here because the rationale for the rule is not applicable
       in the present case; and (3) the prior delay is not attributable to defendant on the later-filed
       DUI(a)(2) charge because the DUI(a)(2) charge is a new and additional charge that requires
       significantly different proof and gives rise to distinctly different defenses.
¶9         In reply, the State asserts that its uniform-citation argument is not forfeited, even if it was
       not specifically referenced in the trial court, because: (1) the trial court’s failure to follow that
       rule renders the trial court’s dismissal order void; and (2) it is intertwined with the issue of
       whether defendant’s speedy-trial rights were violated. In the alternative, the State asserts that
       this court should consider the merits of its argument, regardless of any possible forfeiture,
       because the issue before this court involves only a question of law, a matter of statutory
       construction of the compulsory-joinder statute, and because the trial court’s allegedly
       erroneous decision affected the substantial rights of the State in bringing appropriate charges
       against defendant.
¶ 10       A trial court’s ruling on a motion to dismiss a charge is generally subject to an abuse of
       discretion standard of review on appeal. People v. King, 366 Ill. App. 3d 552, 554 (2006).
       However, as in the instant case, when the facts are not in dispute and the question presented
       is one of law, the standard of review is de novo. King, 366 Ill. App. 3d at 554.


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¶ 11        The issue in this case involves the interrelationship between the speedy-trial rule (725
       ILCS 5/103-5 (West 2010)) and the compulsory-joinder rule (720 ILCS 5/3-3 (West 2010)).
       The speedy-trial rule provides, in pertinent part, that every defendant on bail or recognizance
       shall be tried within 160 days from the date he or she demands trial unless delay is
       occasioned by the defendant. 725 ILCS 5/103-5(b) (West 2010); People v. Hall, 194 Ill. 2d
       305, 326 (2000). “Any period of delay found to be occasioned by the defendant tolls the
       applicable statutory period.” Hall, 194 Ill. 2d at 327.
¶ 12        A calculation of the speedy-trial period becomes more complicated when multiple
       charges are filed against a defendant at different times. In a such a situation, it must be
       determined whether the compulsory-joinder rule applies. Under the compulsory-joinder rule,
       multiple charges against a defendant must be joined in a single prosecution if the following
       three conditions are satisfied: (1) the multiple charges are known to the prosecutor when the
       prosecution begins; (2) the charges are within the jurisdiction of a single court; and (3) the
       charges are based upon the same act. See 720 ILCS 5/3-3(b) (West 2010); People v. Quigley,
       183 Ill. 2d 1, 7 (1998). If the compulsory-joinder rule applies, the multiple charges are
       subject to the same speedy-trial period, which begins to run when the demand for speedy trial
       is filed, even if some of the charges are brought at a later date. Quigley, 183 Ill. 2d at 13;
       People v. Phipps, 238 Ill. 2d 54, 66 (2010). Thus, when the compulsory-joinder rule applies,
       the filing of a subsequent charge does not give rise to a new, separate speedy-trial period
       relative to that charge. See Quigley, 183 Ill. 2d at 13; Phipps, 238 Ill. 2d at 66.
¶ 13        The rules for tolling the speedy-trial period are also more complicated if the compulsory-
       joinder rule applies. As our supreme court has stated:
                 “ ‘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.’ ” Phipps, 238 Ill. 2d at 66 (quoting People v. Williams, 94 Ill. App. 3d 241,
            248-49 (1981)).
       In other words, when the compulsory-joinder rule applies, a delay that occurs on the original
       charge (or charges) and that is attributable to defendant will not toll the speedy-trial period
       as to a subsequent charge (or charges), if the delay occurred before the subsequent charge
       was filed because the subsequent charge was not before the court when the delay occurred.
       See Phipps, 238 Ill. 2d at 66. In such a situation, it cannot be assumed that the defendant
       would have agreed to the delay if the new charge had been pending. Phipps, 238 Ill. 2d at 67.
       The purpose of this rule, known as the Williams rule, is to prevent the defendant from being
       subject to a trial by ambush whereby the State could lull a defendant into a false sense of
       security on a lesser charge while actually preparing to file, and to go to trial on, a more
       serious charge. See Phipps, 238 Ill. 2d at 67.
¶ 14        The Williams rule, however, only applies when the original charge and the subsequent


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       charge are subject to the compulsory-joinder rule. Phipps, 238 Ill. 2d at 67. Thus, the
       Williams rule does not apply to offenses that are charged by a uniform citation and complaint
       form provided for traffic offenses because the compulsory-joinder rule does not apply to
       offenses charged in that manner. See People v. Jackson, 118 Ill. 2d 179, 192-93 (1987), rev’d
       on other grounds, People v. Stefan, 146 Ill. 2d 324, 336 (1992). This is because the language
       of the compulsory-joinder statute requires joinder only if the several offenses are known to
       the proper prosecuting officer, i.e. the State’s Attorney, when the prosecution began. See
       Jackson, 118 Ill. 2d at 192-93. Uniform citation and complaint forms are filled out and filed
       by a police officer, not the State’s Attorney, so compulsory joinder does not apply to offenses
       charged in that manner. See Jackson, 118 Ill. 2d at 192-93.
¶ 15        In the present case, it appears that at the hearing on the motion to dismiss, the trial court
       and the parties assumed that the compulsory-joinder rule applied to this case and that it
       required that the original DUI(a)(5) charge and the subsequent DUI(a)(2) charge be joined
       in a single prosecution. The legal effect of that assumption was that a single speedy-trial
       period applied to both of the DUI charges and that the speedy-trial period began to run on
       December 20, 2010, when defendant filed his demand for speedy trial. See Quigley, 183 Ill.
       2d at 13; Phipps, 238 Ill. 2d at 66. Therefore, during arguments, the parties focused on
       whether the subsequent DUI(a)(2) charge was a new and additional charge for speedy-trial
       purposes, because if it was, the previous delay could not be attributed to defendant (see
       Phipps, 238 Ill. 2d at 66), the speedy-trial period would not have been tolled as to the
       DUI(a)(2) charge, and the speedy-trial period would have run as to the DUI(a)(2) charge
       before that charge was filed. Defendant argued that the DUI(a)(2) charge was a new and
       additional charge; the State took the opposite position; and the trial court ultimately agreed
       with defendant.
¶ 16        However, when the law set forth above is applied to the facts of the present case, it is
       apparent that the compulsory-joinder rule does not apply and that the trial court erred in
       granting the motion to dismiss the charge. The original DUI(a)(5) charge in this case was
       filed by way of a uniform traffic citation and complaint form. Therefore, the compulsory-
       joinder rule does not apply as between that charge and the subsequent DUI(a)(2) charge. See
       Jackson, 118 Ill. 2d at 192-93. The supreme court’s statement on that issue in Jackson could
       not be any more clear (see Jackson, 118 Ill. 2d at 192), and we see no reason why that rule
       would not apply in the present case. Nor can we find that the rule from Jackson has been
       forfeited. Even if the State did not assert that rule in the trial court, it must be considered as
       it is intertwined with the issues of compulsory joinder and speedy trial and the law on those
       issues. To rule otherwise would be, essentially, to issue an advisory opinion as to the result
       that would be mandated under the law if the rule from Jackson did not exist. That, we cannot
       do. See Barth v. Reagan, 139 Ill. 2d 399, 419 (1990). Because the compulsory-joinder rule
       does not apply in this case, the speedy-trial period from the original DUI(a)(5) charge does
       not apply to the subsequent charge of DUI(a)(2). Thus, the State did not violate the speedy-
       trial term as to the DUI(a)(2) charge, and the motion to dismiss should have been denied.
       There is no need to consider, as the trial court did, whether the DUI(a)(2) charge was a new
       and additional charge for speedy-trial purposes.
¶ 17        For the foregoing reasons, we reverse the judgment of the circuit court of Will County

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       and remand this case for further proceedings consistent with this opinion.

¶ 18      Reversed and remanded.

¶ 19        PRESIDING JUSTICE SCHMIDT, specially concurring.
¶ 20        I agree with the decision of the majority to reverse and remand; I do not agree with their
       rationale. They rely on People v. Jackson, 118 Ill. 2d 179 (1987), rev’d on other grounds,
       People v. Stefan, 146 Ill. 2d 324 (1992). I am not sure compulsory joinder lies at the heart
       of this case. Nevertheless, the original charge of DUI(a)(5) gave defendant adequate notice
       of the DUI(a)(2) charge. Therefore, a trial on the DUI(a)(2) charge would not be a speedy-
       trial violation, and the result reached by the majority is correct.
¶ 21        The relevant issue in Jackson was whether a DUI charged by way of a uniform citation
       would require the compulsory joinder of a reckless homicide charge stemming from the same
       facts. Jackson, 118 Ill. 2d at 191-92. Section 3-3 of the Criminal Code of 1961 states: “If the
       several offenses are known to the proper prosecuting officer at the time of commencing the
       prosecution and are within the jurisdiction of a single court, they must be prosecuted in a
       single prosecution,” unless the court orders the charges to be tried separately. 720 ILCS 5/3-
       3(b), (c) (West 2010). The Jackson court held that “the compulsory-joinder provisions of
       section 3-3 do not apply to offenses that have been charged by the use of a uniform citation.”
       Jackson, 118 Ill. 2d at 192. The court went on to explain that a felony could not be charged
       by uniform citation; therefore, it was impossible for the officer writing a ticket for DUI to
       also charge the reckless homicide at the same time. Id.
¶ 22        The facts of this case are distinguishable. Here, the new charge was not a felony, which
       could not have been charged along with the original charge. The new charge here was
       another charge of DUI, which the charging officer was aware of at the time the original
       charge was made and able to charge. While a felony is not subject to compulsory joinder with
       a charge made by uniform citation, a charge of DUI(a)(2) may well be subject to compulsory
       joinder with a charge of DUI(a)(5), which was charged by uniform citation. It would seem
       that the same logic which supports the supreme court’s decision in Jackson would not apply
       here in the case of two almost identical misdemeanors. Here, we do not have the State lying
       in the bushes with a more serious charge. However, I find no need to decide that issue to
       resolve this case. We can leave for the supreme court the issue of whether it really meant that
       two or more similar offenses arising out of the same incident are always exempt from the
       compulsory joinder rule simply because they are routinely charged by way of uniform
       citation.
¶ 23        In determining whether a charge is “new and additional” with respect to the right to a
       speedy trial, “[t]he 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.” People
       v. Phipps, 238 Ill. 2d 54, 67 (2010). Where the original charge gives defendant notice of the
       subsequent charge, any delays attributable to the defendant for speedy-trial purposes on the

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       initial charge are also attributable to him on the subsequent charge. Id. at 69-70.
¶ 24        The defendant in this case was initially charged with DUI(a)(5), which consists of driving
       under the combined influence of alcohol and other drugs or intoxicating substances. 625
       ILCS 5/11-501(a)(5) (West 2010). The State then added a charge of DUI(a)(2), which
       consists of driving while under the influence of alcohol. 625 ILCS 5/11-501(a)(2) (West
       2010). The original charge put defendant on notice that he was charged with driving under
       the combined influence of alcohol and other drugs or intoxicating compounds. The addition
       of a charge that consists of driving while under the influence of only alcohol does not add
       any new elements. Defendant was on notice that the State alleged he drove under the
       influence of alcohol; it was an explicit element of the original charge. There was nothing to
       surprise the defendant in the charge of DUI(a)(2). I find it disingenuous for defendant to
       argue that he would not have been prepared to defend against an allegation that he was
       impaired by alcohol in light of the DUI(a)(5) charge. Therefore, all of the delays attributable
       to him on the original charge were also attributable to him on the subsequent charge, and no
       speedy-trial violation prevented trial on both charges.
¶ 25        The decision of the trial court should be reversed and the cause remanded; no speedy-trial
       violation occurred. I concur with the judgment of the majority.




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