                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Wells, 2012 IL App (1st) 083660




Appellate 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.


                                              -3-
¶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.

                                                -4-
       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

                                                 -5-
       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


                                                 -6-
       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


                                                -7-
       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

                                                 -8-
       (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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