                                No. 2--06--0423      Filed: 5-29-08
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 04--CF--1092
                                       )
CRAVEN F. PHIPPS,                      ) Honorable
                                       ) Ronald J. White,
      Defendant-Appellant.             ) Judge Presiding.
______________________________________________________________________________

       JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

       The defendant, Craven F. Phipps, pleaded guilty to aggravated driving under the influence

(aggravated DUI) (625 ILCS 5/11--501(d)(1)(F) (West 2004)) and was sentenced to 12 years'

imprisonment. Following the denial of his motion to withdraw his guilty plea, the defendant filed

a timely notice of appeal. On appeal, the defendant argues that he was deprived of the effective

assistance of counsel at the plea proceedings. We reverse and remand for additional proceedings.

       On April 5, 2004, the defendant drove a car that collided with a car driven by MaLocka Gille.

Gille died as a result of the collision. Immediately following the collision, the defendant was

ticketed for violating a local traffic ordinance and for one count of driving under the influence (625

ILCS 5/11--501(a)(2) (West 2004)). On April 28, 2004, the defendant was charged by indictment

with one count of reckless homicide (720 ILCS 5/9--3(a) (West 2004)). The indictment indicated

that the charge was a Class 2 felony, subject to special sentencing.
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       We note that, prior to 2003, section 9--3 of the Criminal Code of 1961 (Criminal Code)

generally classified reckless homicide as a Class 3 felony, punishable by two to five years in prison

(720 ILCS 5/9--3(d)(2) (West 2002); 730 ILCS 5/5--8--1(a)(6) (West 2002)). In addition to that

general classification, section 9--3(e) provided in pertinent part as follows:

               "[I]n cases involving reckless homicide in which the defendant was determined to

       have been under the influence of alcohol or any other drug or drugs as an element of the

       offense, or in cases in which the defendant is proven beyond a reasonable doubt to have been

       under the influence of alcohol or any other drug or drugs, the penalty shall be a Class 2

       felony, for which a person, if sentenced to a term of imprisonment, shall be sentenced to a

       term of not less than 3 years and not more than 14 years." 720 ILCS 5/9--3(e) (West 2002).

       Effective July 18, 2003 (approximately nine months prior to the defendant committing the

instant offense), the legislature amended section 9--3 of the Criminal Code (Pub. Act 93--213, §7,

eff. July 18, 2003) in response to our supreme court's decision in People v. Pomykala, 203 Ill. 2d 198

(2003). In Pomykala, our supreme court held that section 9--3(b) created an improper mandatory

presumption because, once a jury concluded that a defendant was intoxicated, the jury was to

presume that the defendant was reckless unless the defendant proved otherwise. Pomykala, 203 Ill.

2d at 207-08. Under the newly enacted version of section 9--3, reckless homicide remained a Class

3 felony punishable by two to five years in prison (720 ILCS 5/9--3(d)(2) (West 2004); 730 ILCS

5/5--8--1(a)(6) (West 2004)). However, Public Act 93--213 made significant changes to section

9--3, including removing subsection (e), under which reckless homicide involving DUI (alcohol or

drugs) was classified as a Class 2 felony punishable by 3 to 14 years in prison.




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       In addition, Public Act 93--213 amended section 11--501(d) of the Illinois Vehicle Code

(Vehicle Code) (625 ILCS 5/11--501(d) (West 2004)), which defines aggravated DUI, by adding

language similar to section 9--3(e) of the Criminal Code to offset the removal of section 9--3(e). In

particular, Public Act 93--213 added section 11--501(d)(1)(F) of the Vehicle Code, which provides

in pertinent part as follows:

               "Every person convicted of committing a violation of this [s]ection shall be guilty of

       aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating

       compound or compounds, or any combination thereof if:

                                                ***

                       (F) the person, in committing a [DUI] violation ***, was involved in a motor

               vehicle, snowmobile, all-terrain vehicle, or watercraft accident that resulted in the

               death of another person, when the violation *** was a proximate cause of the death."

               625 ILCS 5/11--501(d)(1)(F) (West 2004).

Public Act 93--213 also amended section 11--501(d)(2) to provide, in pertinent part, that aggravated

DUI (alcohol or drugs) is a Class 2 felony with a penalty range of 3 to 14 years in prison if the

violation resulted in the death of one person. 625 ILCS 5/11--501(d)(2) (West 2004).

       Despite this change in the law, the State, defense counsel, and the trial court all acted as if

the reckless homicide statute had not been amended. On August 20, 2004, defense counsel informed

the trial court that the defendant would be entering a plea of guilty to reckless homicide in exchange

for the State recommending a sentencing cap of 12 years' imprisonment. The trial court then asked

the State if, based on the special sentencing provisions, the sentencing range was 3 to 14 years'

imprisonment. The State indicated that it was. The trial court then admonished the defendant that,



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based on the plea agreement, the defendant could receive a sentence of up to 12 years' imprisonment.

The defendant indicated that he understood that he could receive a sentence of up to 12 years'

imprisonment. The trial court subsequently accepted the defendant's plea, entered a judgment of

conviction, and ordered the preparation of a presentence investigation report.

          On November 19, 2004, prior to sentencing, the State filed a motion to vacate the defendant's

guilty plea. The State asserted that the legislature had found the statute under which the defendant

had pleaded guilty (720 ILCS 5/9--3(a) (West 2004)) to be void. The State further asserted that the

appropriate charge against the defendant was aggravated DUI (625 ILCS 5/11--501(d)(1)(F) (West

2004)).

          (We note that the State's rationale for its motion was incorrect. The legislature had not

determined that the reckless homicide statute was void. See People v. Lush, 372 Ill. App. 3d 629,

636-37 (2007). Rather, the legislature had amended that statute so as to remove the mandatory

presumption language and the special sentencing provisions. See Lush, 372 Ill. App. 3d at 636-37.)

          On December 1, 2004, the trial court conducted a hearing on the State's motion. Defense

counsel explained to the court:

          "It's [the State's and the defendant's] intention at this time to vacate the previous plea entered

          on the reckless homicide, the same exact behavior encompassed in the aggravated driving

          under the influence of alcohol statute. We believe it eliminates any question regarding the

          validity of the statute if we vacate the plea on the reckless homicide, enter a plea instead to

          the charge of aggravated DUI."




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After the State indicated that it agreed with defense counsel's statement, the trial court granted the

State's motion to vacate the defendant's plea. The State then filed an information charging the

defendant with aggravated DUI. The information alleged:

               "That on or about the 5th day of April, 2004, in the County of Winnebago, State of

       Illinois, CRAVEN PHIPPS committed the offense of AGGRAVATED DRIVING UNDER

       THE INFLUENCE OF ALCOHOL in that he drove a motor vehicle within this state while

       under the influence of alcohol, in violation of 625 ILCS 5/11--501(a)(2), was involved in a

       motor vehicle accident upon a public highway, namely Auburn Street, in the city of

       Rockford, Illinois, with a motor vehicle being driven by Malocka Gille, said motor vehicle

       accident causing the death of Malocka Gille, and said violation was the proximate cause of

       the death of Malocka Gille in violation of 625 ILCS 5/11--501(d)(1)(F). (Class 2 Felony--

       Special Sentencing Range of 3 to 14 years if [sic] imprisonment--Max. Fine $25,000)."

The defendant waived preliminary hearing and entered a plea of guilty to aggravated DUI, which the

trial court accepted on the same day.

       On December 16, 2004, following a hearing, the trial court sentenced the defendant to 12

years' imprisonment. On January 14, 2005, the defendant filed a motion to withdraw his guilty plea

and a motion to reconsider his sentence. On March 29, 2006, following a hearing, the trial court

denied the motions. The defendant thereafter filed a timely notice of appeal.

       On appeal, the defendant argues that he was denied the effective assistance of counsel.

Specifically, the defendant contends that his counsel should have objected to the State's motion to

revise the plea agreement to vacate the plea to reckless homicide, a Class 3 felony, and substitute the

charge with that of aggravated DUI, a Class 2 felony. Additionally, the defendant argues that, under



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No. 2--06--0423


the compulsory joinder statute, the State is required to prosecute all charges in a single prosecution.

As the State failed to bring an aggravated DUI charge against him within 120 days of his being

placed in custody, thereby violating the speedy-trial statute (725 ILCS 5/103--5(a) (West 2004)), the

defendant argues that his counsel was ineffective for not objecting to the State filing an aggravated

DUI charge against him 241 days after he was taken into custody.

        Prior to addressing the merits of the defendant's appeal, we first address the State's argument

that, by pleading guilty, the defendant has waived his right to challenge on appeal the effectiveness

of his trial counsel. In making this argument, the State relies on the law set forth in People v. Stone,

374 Ill. App. 3d 980, 984-85 (2007), which provides:

                "It is well established that a voluntary guilty plea waives all nonjurisdictional errors

        or irregularities, including constitutional errors. People v. Townsell, 209 Ill. 2d 543, 545

        (2004). '[A] guilty plea represents a break in the chain of events which has preceded it in the

        criminal process. When a criminal defendant has solemnly admitted in open court that he

        is in fact guilty of the offense with which he is charged, he may not thereafter raise

        independent claims relating to the deprivation of constitutional rights that occurred prior to

        the entry of the guilty plea. He may only attack the voluntary and intelligent character of the

        guilty plea by showing that the advice he received from counsel was not within the standards

        set forth in McMann.' Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 243, 93

        S. Ct. 1602, 1608 (1973), citing McMann v. Richardson, 397 U.S. 759, 771, 25 L. Ed. 2d

        763, 773, 90 S. Ct. 1441, 1449 (1970) (defendant must show that advice was not 'within the

        range of competence demanded of attorneys in criminal cases')." Stone, 374 Ill. App. 3d at

        984-85.



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Here, the defendant is arguing on appeal that his attorney's representation at the plea proceedings was

not within the range of competence demanded of attorneys in criminal cases. Thus, the defendant

did not waive his right to challenge the effectiveness of his counsel's representation. See People v.

Palmer, 162 Ill. 2d 465, 476 (1994) (supreme court considered on direct appeal issue of defense

counsel's effectiveness at plea proceedings).

        The State further argues that the defendant has waived the right to challenge the effectiveness

of his counsel's representation because he did not raise that issue in his motion to withdraw his guilty

plea. The State correctly notes that the trial court allowed the defendant to speak with another

attorney regarding whether he wanted to pursue an ineffective-assistance claim. The defendant

informed the conflict attorney that he did not wish to pursue that claim. Thus, the defendant's

original counsel continued to represent him at the hearing on his motion to withdraw his guilty plea.

        Even though the trial court gave the defendant the opportunity to raise an ineffective-

assistance claim at the proceedings below and the defendant chose not do so, we do not believe it

would be appropriate to determine that the defendant is now procedurally barred from raising that

issue on appeal. Waiver is a limitation on the parties, but does not limit the court's ability to consider

the issue. People v. Peden, 377 Ill. App. 3d 463, 470 (2007). Because both the parties and the trial

court demonstrated some confusion as to the effects of the legislature's amendment of the reckless

homicide statute, the waiver rule should be relaxed.

        Having determined that the issue has not been waived for our review, we note our perplexity

that the State raised no argument in its appellate brief other than waiver. The cases cited above as

to when the waiver doctrine applies are not novel. Moreover, although the State has the right to

argue any procedural basis to affirm the trial court's judgment, we believe that to rely solely on that



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basis, particularly when the defendant is asserting the substantial deprivation of a constitutional right,

is inappropriate. The role of the State on appeal is more than just arguing that the lower court's

decision should be affirmed. The State's role is to provide arguments sounded in law and, if

necessary, to concede errors below, to help ensure that this court reaches a just resolution of the case

before it. See United States v. Wade, 388 U.S. 218, 256 n.5,18. L. Ed. 2d 1149, 1174 n.5, 87 S. Ct.

1926, 1947 n.5 (1967) (White, J., concurring in part and dissenting in part, joined by Harlan and

Stewart, JJ.), quoting Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 1321, 55 S. Ct. 629,

633 (1935) (setting forth that the State's obligation in a criminal prosecution " 'is not that it shall win

a case but that justice shall be done' ").

        Turning to the merits of the defendant's appeal, we first observe that a claim of ineffective

assistance of counsel is judged according to the two-prong, performance-prejudice test established

in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v.

Lawton, 212 Ill. 2d 285, 302 (2004); People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). To obtain

relief under Strickland, a defendant must prove that defense counsel's performance fell below an

objective standard of reasonableness and that this substandard performance caused prejudice by

creating a reasonable probability that, but for counsel's errors, the trial result would have been

different. People v. Boyd, 363 Ill. App. 3d 1027, 1034 (2006).

        "An attorney's failure to seek discharge of his client on speedy-trial grounds generally will

be deemed ineffective assistance of counsel if there is a reasonable probability that the defendant

would have been discharged had a timely motion for discharge been made and no justification has

been proffered for the attorney's failure to bring such a motion." People v. Staten, 159 Ill. 2d 419,

431 (1994); People v. Peco, 345 Ill. App. 3d 724, 729 (2004). "We address the likelihood of success



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of a motion to discharge before analyzing whether counsel was justified in declining to move for a

speedy trial." See Boyd, 363 Ill. App. 3d at 1034.

       Section 103--5(a) of the Code of Criminal Procedure of 1963 provides that a defendant is

entitled to a trial within 120 days from the date he was taken into custody unless his own acts

occasioned delay. 725 ILCS 5/103--5(a) (West 2004). In this case, the defendant was taken into

custody on April 5, 2004. All of the offenses arose from a single incident, but the State filed charges

against the defendant on two different dates. On April 28, 2004, the defendant was charged with

committing reckless homicide. On December 1, 2004, the defendant was charged with aggravated

DUI.

       The rule for determining the number of speedy-trial days attributable to the State when new

and additional charges are brought against a previously charged defendant was initially stated in

People v. Williams, 94 Ill. App. 3d 241, 248-49 (1981):

               "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." Williams, 94 Ill. App. 3d at 248-

       49.

       In People v. Williams, 204 Ill. 2d 191 (2003), our supreme court reiterated its approval of

the rule but stated that it applies only to new and additional charges that are subject to compulsory



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joinder under section 3--3 of the Criminal Code (720 ILCS 5/3--3 (West 2004)). The court

concluded that the speedy-trial statute should not be interpreted to require joinder that is not already

mandated by section 3--3 of the Criminal Code. Williams, 204 Ill. 2d at 203. The court restated the

rule and emphasized its rationale:

       "If the initial and subsequent charges filed against the defendant are subject to compulsory

       joinder, delays attributable to the defendant on the initial charges are not attributable to the

       defendant on the subsequent charges.

               The harm in a contrary result is obvious: a trial by ambush. The 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. We cannot presume that a defendant would have

       agreed to a continuance if he had faced both charges. As Justice Kuehn presciently observed,

       'All choices about requests that would delay proceedings would be made under a false

       understanding as a result of this deception.' 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. Today, we do not create a loophole for criminal

       defendants. Instead, we close a loophole which would allow the State to circumvent a

       statutorily implemented constitutional right." Williams, 204 Ill. 2d at 207, quoting People

       v. Williams, No. 5--99--0452, slip op. at __ (____) (unpublished order under Supreme Court

       Rule 23) (Kuehn, J., dissenting).

       In this case, the speedy-trial period for the original charges will also apply to the aggravated

DUI charge only if the new charge was subject to compulsory joinder. The compulsory-joinder

provision of the Criminal Code states as follows:



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               "(a) When the same conduct of a defendant may establish the commission of more

       than one offense, the defendant may be prosecuted for each such offense.

               (b) 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, except as provided in Subsection (c), if they are based on

       the same act.

               (c) When 2 or more offenses are charged as required by Subsection (b), the court in

       the interest of justice may order that one or more of such charges shall be tried separately."

       720 ILCS 5/3--3 (West 2004).

       Here, the reckless homicide charge set forth that on April 5, 2004, the defendant, while under

the influence of alcohol, was involved in a motor vehicle accident that killed the victim. The

aggravated DUI charge also set forth that on April 5, 2004, the defendant, while under the influence

of alcohol, was involved in a motor vehicle accident that killed the victim. Thus, it is apparent that

both charges arose from the same conduct in Winnebago County and thus were within the

jurisdiction of a single court. Moreover, a review of the record reveals that the prosecutor should

have been aware of both offenses when the defendant was originally indicted. Accordingly, both

charges should have been brought in the same proceeding. See 720 ILCS 5/3--3 (West 2004); People

v. Quigley, 183 Ill. 2d 1, 11 (1998). As the State did not bring the aggravated DUI charge until

almost eight months after the defendant had been in custody, the aggravated DUI charge was not

timely filed and therefore violated the defendant's right to a speedy trial. Defense counsel was

therefore ineffective for not seeking to have that charge dismissed on speedy-trial grounds. See




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No. 2--06--0423


Boyd, 363 Ill. App. 3d at 1039. We conclude that the defendant's remedy is a speedy-trial discharge

of the aggravated DUI charge. See Boyd, 363 Ill. App. 3d at 1039.

        In so ruling, we find unpersuasive the State's reliance on People v. Woodrum, 223 Ill. 2d 286

(2006). In that case, the State charged the defendant by indictment with seven counts of child

abduction (720 ILCS 5/10--5(b)(10) (West 1998)). Woodrum, 223 Ill. 2d at 291. The first

indictment alleged that on or about November 4, 1999, the defendant intentionally lured four

children into his dwelling without the consent of their parents. Woodrum, 223 Ill. 2d at 291-92. The

second indictment alleged that on or about November 5, 1999, the defendant intentionally lured three

children into his dwelling without the consent of their parents. Woodrum, 223 Ill. 2d at 292. On

June 22, 2000, the State filed amended indictments, essentially restating the previous allegations and

adding that the defendant acted " 'for other than a lawful purpose.' " Woodrum, 223 Ill. 2d at 292.

On July 28, 2000, the defendant moved to dismiss the indictments, claiming that his right to a speedy

trial had been violated. Woodrum, 223 Ill. 2d at 293. At the hearing on the motion, the defendant

argued that any delays in connection with the original charges could not be attributed to him on the

subsequent indictments, because those indictments contained new and additional charges.

Woodrum, 223 Ill. 2d at 293. The trial court denied the defendant's motion to dismiss, finding that

the subsequent indictments were " 'just the re-indictment of the original charges.' " Woodrum, 223

Ill. 2d at 293.

        On appeal, the appellate court reversed, determining that the defendant's statutory right to a

speedy trial had been violated. Woodrum, 223 Ill. 2d at 296. The supreme court reversed the

appellate court. Woodrum, 223 Ill. 2d at 301. The supreme court explained that the charges against

the defendant in the second indictment would be subject to dismissal on speedy-trial grounds if the



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charges were "new and additional." Woodrum, 223 Ill. 2d at 299-301. The supreme court

determined that the charges in the second indictment were not new and additional but rather were

"virtually identical" to the charges in the first indictment. Woodrum, 223 Ill. 2d at 300-01.

        Here, unlike in Woodrum, the second indictment against the defendant was based on a

different statute. As explained above, at the time the defendant was indicted for reckless homicide,

he could be sentenced to a maximum of five years' imprisonment for that specific offense. See 720

ILCS 5/9--3(d)(2) (West 2004); 730 ILCS 5/5--8--1(a)(6) (West 2004). (Under the reckless

homicide statute, if certain factors were present, such as the offense occurring in a construction zone,

the offender could be sentenced to a term beyond five years' imprisonment. See 720 ILCS

5/9--3(e--7), (e--8), (e--9), (f) (West 2004). None of those factors are applicable in the instant case.)

Under the subsequent information for aggravated DUI, the defendant could be sentenced to a

maximum of 14 years' imprisonment. See 625 ILCS 5/11--501(d)(1)(F) (West 2004). Based on the

different penalties for the different statutory charges, the indictments were not "virtually identical."

Rather, the charges in the second indictment were "new and additional." Accordingly, Woodrum

does not require a different result in this case.

        The dissent's conclusion that Woodrum is indistinguishable from the case at bar does not

comport with the material facts of this case. Here, after the defendant was involved in the fatal

automobile accident on April 5, 2004, the State had the option, based on the specific conduct at

issue, of charging the defendant with reckless homicide (having a maximum sentence of five years'

imprisonment), aggravated DUI (having a maximum sentence of 14 years' imprisonment), or both.

The State chose to charge the defendant with a single offense of reckless homicide. In light of the

specific allegations in the indictment, the fact that the indictment included a notation that the reckless



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homicide charge was a Class 2 felony, subject to special sentencing, does not mean that the State

could seek a sentence beyond the statutory maximum of five years. See People v. Reyes, 338 Ill.

App. 3d 619, 620 (2003) (sentence beyond the statutory maximum is void). If the State wanted to

pursue the new and additional charge of aggravated DUI against the defendant, the State was

obligated to bring that charge within 120 days after the defendant was taken into custody for reckless

homicide. See Quigley, 183 Ill. 2d at 11. As the State did not bring the new charge in a timely

fashion, the defendant's conviction of aggravated DUI cannot stand.

        In arguing that defense counsel provided the defendant with effective representation, the

dissent additionally relies upon Williams, 204 Ill. 2d at 207, and People v. Witt, 227 Ill. App. 3d 936,

944 (1992). The dissent's reliance on those cases is misplaced as neither case involved a defendant

who was advised by his defense counsel to accept a plea agreement in which the possible sentence

exceeded the statutory maximum.

        Having determined that the aggravated DUI conviction must be reversed, we next address

whether there is any basis to allow the State to bring again a charge of reckless homicide against the

defendant. We note that, in his original brief, the defendant's prayer for relief was that his conviction

of aggravated DUI be reversed and that the cause be remanded to allow him to plead anew to the

original reckless homicide charge. We ordered the parties to file supplemental briefs to address

whether the State may charge the defendant again with the original reckless homicide charge. Upon

reviewing all of the supplemental briefs, we agree with the defendant that it is within the State's

discretion whether to bring charges against the defendant again for reckless homicide. See People

v. Flanagan, 201 Ill. App. 3d 1071, 1076 (1990). The issue of whether these charges would




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withstand a motion to dismiss is not yet ripe for our review. See People v. Cottrell, 141 Ill. App. 3d

364, 368 (1986) (court will not consider issue that is not ripe for review).

       For the foregoing reasons, we reverse the defendant's conviction of aggravated DUI and we

remand for additional proceedings consistent with this opinion.

       Reversed and remanded with directions.

       BYRNE, P.J., concurs.

       JUSTICE O'MALLEY, dissenting:

       I disagree with the majority's conclusion that defendant's counsel was ineffective for failing

to object on speedy-trial grounds to the State's presenting a new charging instrument. In my view,

the new charging instrument corrected a formal defect in the previous charging instrument and did

not add any new charges against defendant. Since an amended charging instrument that does not

allege a new crime does not trigger the speedy-trial concerns that defendant now argues, counsel's

failure to raise a speedy-trial objection was neither unreasonable assistance nor prejudicial to

defendant.

       In 2002, reckless homicide occurred, inter alia, where a person, without lawful justification,

unintentionally killed another person and the cause of death consisted of the driving of a motor

vehicle. 720 ILCS 5/9--3(a) (West 2002). The offense became a Class 2 felony, punishable by 3 to

14 years' imprisonment, "in cases in which the defendant is proven beyond a reasonable doubt to

have been under the influence of alcohol." 720 ILCS 5/9--3(e) (West 2002). In 2004, driving under

the influence of alcohol occurred where a person drove a vehicle while under the influence of alcohol

(625 ILCS 5/11--501(a) (West 2004)), and the offense became the Class 2 felony of aggravated

driving under the influence, punishable by 3 to 14 years' imprisonment, where the person driving the



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vehicle was involved in an accident that caused the death of another person (625 ILCS 5/11--

501(d)(1)(F), (d)(2) (West 2004)). Thus, the Class 2 felony versions of both crimes describe

precisely the same conduct and have precisely the same elements. See People v. Gancarz, No.

104029, slip op. at 8 (April 3, 2008) (Public Act 93--213 "recharacterized the conduct that had been

reckless homicide while under the influence of drugs or alcohol as aggravated driving while under

the influence, and retained the sentencing structure of 3 to 14 years' imprisonment"); slip op. at 3

(2003 amendment to aggravated driving under the influence "add[ed] language similar to section 9--

3(e) of the Criminal Code to offset the removal of section 9--3(e)").

       The State charged defendant with the Class 2 felony version of reckless homicide. Then,

upon learning that the crime had been relabeled aggravated driving under the influence, it filed a new

charging instrument alleging a Class 2 felony, based on the exact same conduct, under the new label.

There were no material differences between the two charging instruments. The second instrument

was, in operation if not in title, an amended charging instrument. I see no problem with this type of

formal amendment. Cf. People v. Witt, 227 Ill. App. 3d 936, 944 (1992) (no reversible error where

the State cited the improper statute in its murder indictments, because the indictments provided the

defendant fair warning of the charges against him).

       Nor does our supreme court. In Woodrum, the defendant argued, just as defendant here

argues, that a subsequent indictment, which restated but amended the original charges, violated his

right to a speedy trial because the intervening delays caused by the defendant did not toll the speedy-

trial period as to the subsequent indictment. Woodrum, 223 Ill. 2d at 297-98. The new charging

instrument alleged the same factual basis and alleged the same charges, but added the phrase " 'for

other than a lawful purpose.' " Woodrum, 223 Ill. 2d at 300-01. The supreme court held that,



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because the "defendant could not have been surprised by the subsequent charges because they were

essentially the same as the original ones," the new charging instrument did not allege "new and

additional" charges for purposes of the defendant's speedy-trial challenge. Woodrum, 223 Ill. 2d at

301. Thus, the supreme court held that the previous continuances tolled the speedy-trial period, even

though they predated the new charging instrument.

       The majority distinguishes Woodrum on the basis that the charges here carried different

penalties and thus cannot be considered identical. According to the majority, "at the time the

defendant was indicted for reckless homicide, he could be sentenced to a maximum of five years'

imprisonment" for a Class 3 felony conviction, while, "[u]nder the subsequent information for

aggravated DUI, the defendant could be sentenced to a maximum of 14 years' imprisonment." Slip

op. at 13. I disagree that the original indictment charged only a Class 3 felony. The original

charging instrument included an explicit notation, in bold typeface no less, that the reckless homicide

charge was "Class 2--Special Sentencing" (emphasis in original). Contrary to what the majority

says, the penalties indicated by the two charging instruments were identical.

       The majority disagrees with my analysis because, according to the majority, the State charged

defendant with reckless homicide, which, at the time of the offense and under the facts presented

here, carried a 5-year maximum penalty instead of a 14-year maximum penalty. Slip op. at 13-14.

The majority takes the wrong approach. While it is true that the conduct labeled "reckless homicide"

in 2004 carried a 5-year maximum penalty under the circumstances presented here, the conduct with

which defendant was charged matched aggravated driving under the influence (and 2002 reckless

homicide), not 2004 reckless homicide.1 Thus, the conduct for which defendant was charged carried



       1
           The majority's position here is doubly confusing because it relies strictly on the label

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No. 2--06--0423


a 14-year maximum penalty, not a 5-year maximum penalty, at the time of defendant's offense. I

further note that, at all relevant times, the parties shared my understanding of the charging

instruments and prepared their cases accordingly. The second charging instrument changed the label

under which defendant was charged, and no more.

       The majority decides this case according to the "rule for determining the number of speedy-

trial days attributable to the State when new and additional charges are brought against a previously

charged defendant." (Emphasis added.) Slip op. at 9. This rule has no application here, where the

State did not present any new and additional charges. Likewise, the compulsory-joinder statute,

upon which the majority relies, applies only where the same conduct of a defendant " 'may establish

the commission of more than one offense.' " (Emphasis added.) Slip op. at 11, quoting 720 ILCS

5/3--3 (West 2004). Here, there was but one offense, and, again, the rule does not apply.

       Indeed, the rationale behind the rule that, for speedy-trial purposes, previously occasioned

continuances caused by the defense count against the State with regard to belatedly filed additional

charges is that a contrary rule could allow "trial by ambush." Williams, 204 Ill. 2d at 207. Under

a different 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." Williams, 204 Ill.



"reckless homicide" (and not the facts contained in the charge) to hold that the amended charging

instrument did not charge the same crime, but it then relies strictly on the actual conduct alleged (and

not the label) to hold that 2004 reckless homicide could carry only a five-year sentence under the

facts of this case. See slip op. at 13 ("Under the reckless homicide statute, if certain factors were

present, ***" a sentence beyond five years was possible, but "[n]one of those factors are applicable

in the instant case"). I rely consistently on the conduct charged against defendant.

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No. 2--06--0423


2d at 207. Under those circumstances, a court "cannot presume that a defendant would have agreed

to a continuance if he had faced both charges." Williams, 204 Ill. 2d at 207. The rationale, like the

rule it supports, does not extend to the present case. The original charging instrument here put

defendant on notice of the same allegations as did the revised charging instrument. Thus, there was

no danger of trial by ambush, and any continuances defendant obtained were sought with full

knowledge of the charge against him.

       The blame for the misguided holding in this case does not lie solely with the majority. In his

opening brief, defendant framed this appeal as involving a speedy-trial issue, and, instead of

responding on the merits, the State in its brief relied exclusively on the waiver argument that the

majority correctly rejects. The State's decision to ignore defendant's argument on the merits was not

just needlessly risky; given the majority's view, it was fatal. Because the State argued only the

waiver issue in its initial brief,2 both the remedy fashioned by the majority and the result I propose

were reached without timely input from the State. This case, then, becomes a classic example of

when an advocate should make an effort to present an alternative argument. Thus, I agree with the

majority's criticism of the State's advocacy here.




       2
           After receiving the parties' initial briefs, in which the State did not address the merits of

defendant's position, we ordered supplemental briefing on the issue of whether the State would be

able to reinstate the reckless homicide charge if we were to vacate defendant's conviction of

aggravated driving under the influence. The State cited Woodrum in its supplemental brief, which

largely ignored the question we had posed to the parties and instead served as a belated argument on

the merits.

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No. 2--06--0423


       I would decide this case according to Woodrum and hold that, since the new charging

instrument alleged the same conduct, and carried the same potential penalty, as the original, it was

not the type of "new and additional" charge required to support defendant's speedy-trial argument.




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