People v. Isbell

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Appellate Court Date: 2021.03.11
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People v. Isbell, 2020 IL App (3d) 180279

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption GARY R. ISBELL, Defendant-Appellant.

District & No. Third District
No. 3-18-0279

Filed September 3, 2020

Decision Under Appeal from the Circuit Court of Fulton County, No. 17-CM-10; the
Review Hon. Bruce C. Beal, Judge, presiding.

Judgment Reversed.

Counsel on James E. Chadd, Peter A. Carusona, and Mark D. Fisher, of State
Appeal Appellate Defender’s Office, of Ottawa, for appellant.

Justin G. Jochums, State’s Attorney, of Lewistown (Patrick Delfino,
Thomas D. Arado, and Gary F. Gnidovec, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Justices Holdridge and Wright concurred in the judgment and opinion.
 OPINION

¶1 Defendant, Gary R. Isbell, appeals following his conviction for misdemeanor domestic
battery. He argues that his statutory right to a speedy trial was violated with respect to the only
charge upon which he was convicted. He thus contends that a motion to dismiss that charge
would have been meritorious and that defense counsel was therefore ineffective for failing to
bring such a motion. In the alternative, defendant argues that the evidence at trial was
insufficient to prove him guilty beyond a reasonable doubt. We reverse defendant’s conviction
outright.

¶2 I. BACKGROUND
¶3 On January 10, 2017, the State charged defendant via complaint with two counts of
misdemeanor domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2016)). Count I of the
complaint alleged that defendant “made contact of an insulting or provoking nature with
Mallory Griffith, a family or household member of the defendant, in that said defendant
grabbed Mallory Griffith by the neck with his hand(s).” Count II of the complaint alleged that
defendant “made contact of an insulting or provoking nature with Mallory Griffith *** in that
said defendant body slammed Mallory Griffith to the ground with his hand(s).”
¶4 Defendant posted bond on January 25, 2017. On March 18, 2017, defendant filed a speedy
trial demand. After that date, the docket shows that the court granted continuances in the case
on at least seven occasions, five of which were on defendant’s motion.
¶5 On April 2, 2018, the State charged defendant with a third count of misdemeanor domestic
battery (id. § 12-3.2(a)(1)). Count III alleged that defendant “knowingly caused bodily harm
to Mallory Griffith *** in that said defendant pushed Mallory Griffith to the ground.”
¶6 Defendant’s jury trial commenced on April 17, 2018. Farmington police chief Carl Powell
testified that Griffith came to the police station on January 2, 2017, alleging that her former
boyfriend, defendant, had battered her the day before. Powell testified that Griffith told him
that defendant “came in the house, then grabbed her cell phone, got angry with her, and body
slammed her, then drug her through the house and kept hitting her.” Powell took photographs
of Griffith’s injuries, which were admitted into evidence. The three photographs show a large
bruise on Griffith’s left leg, a small bruise on her left arm, and a red mark on the inside of her
right arm.
¶7 Griffith testified that on January 1, 2017, defendant came to her house, grabbed her cell
phone from her hand, and threw it to the ground. Griffith testified that defendant “instantly
body slammed me to the ground onto the wood floor.” Griffith attempted to flee, but she
testified: “[E]very time I got up he body slammed me as hard as he could right back down to
the ground.” When the State asked Griffith if defendant was pushing her down, Griffith replied:
“Every time I get up, he’s back to body slamming me right back down, either on my ceramic
tile or hardwood floors in my house.” Defendant eventually stopped attacking her and left the
house.
¶8 Defendant testified that on the morning in question he and Griffith argued about text
messages she had received. Defendant began reading Griffith’s messages, and Griffith lunged
at him. Defendant testified: “We kind of came like wrapped up with each other. We ended up

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 to where her feet got tangled, we lost our balance, we both went to the floor pretty hard.”
Defendant denied hitting, body slamming, or choking Griffith.
¶9 The jury found defendant guilty on count III and not guilty on counts I and II. The court
sentenced defendant to one year of conditional discharge and 90 days in jail.

¶ 10 II. ANALYSIS
¶ 11 Defendant argues on appeal that defense counsel rendered ineffective assistance by failing
to move to dismiss count III of the complaint on speedy trial grounds. Because we agree and
reverse defendant’s conviction outright on those grounds, we need not consider defendant’s
alternative sufficiency of the evidence argument.
¶ 12 Section 103-5(b) of the Code of Criminal Procedure of 1963 mandates that a person free
on bail or recognizance must be tried within 160 days of the date of his demand for a speedy
trial, “unless delay is occasioned by the defendant.” 725 ILCS 5/103-5(b) (West 2016). Where
a defendant moves for or agrees to a continuance, the ensuing delay is considered attributable
to him and will not count against the 160-day period. People v. Patterson, 392 Ill. App. 3d 461,
467 (2009). “A defendant not tried within the statutory period must be released from custody
and is entitled to have the charges dismissed.” People v. Hall, 194 Ill. 2d 305, 327 (2000); 725
ILCS 5/103-5(d) (West 2016).
¶ 13 Where defense counsel fails to bring a speedy trial violation to the attention of the court in
the form of a motion to dismiss charges, counsel renders constitutionally ineffective assistance.
People v. Staten, 159 Ill. 2d 419, 431 (1994). Thus, when a defendant raises an ineffectiveness
claim on such grounds, we must only consider whether a motion to dismiss charges on speedy
trial grounds, had it been filed by counsel, would have been meritorious. E.g., id.; People v.
Phipps, 238 Ill. 2d 54, 65 (2010). The remedy for ineffective assistance in this regard is the
same as the remedy for any speedy trial violation found on appeal: outright reversal of the
conviction or convictions in question. People v. Beyah, 67 Ill. 2d 423, 429 (1977); People v.
Boyd, 363 Ill. App. 3d 1027, 1039 (2006).
¶ 14 The application of the speedy trial statute “becomes more complicated when the defendant
is charged with multiple, but factually related, offenses at different times.” People v. Williams,
204 Ill. 2d 191, 198 (2003). What has come to be known as the Williams rule was first
announced by the First District in 1981, when it held:
“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.” People v. Williams, 94 Ill. App. 3d 241, 248-49 (1981).
Our supreme court, which would formally adopt the Williams rule, explained the rationale
underlying the rule as follows:
“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

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 defendant would have agreed to a continuance if he had faced both charges.”
(Emphasis added.) Williams, 204 Ill. 2d at 207.
¶ 15 A later-filed charge will only be considered “ ‘new and additional’ ” for purposes of
applying the Williams rule where it is subject to compulsory joinder. People v. Williams, 193
Ill. 2d 1, 16-17 (2000). The compulsory joinder statute requires that “[i]f 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 *** if
they are based on the same act.” 720 ILCS 5/3-3(b) (West 2016).
¶ 16 In subsequent cases, our supreme court has made clear that compulsory joinder is a
necessary, but not sufficient, condition for the application of the Williams rule. In Phipps, for
example, the court explained that the Williams rule should be applied only in those situations
in which the underlying rationale for the rule is applicable. Phipps, 238 Ill. 2d at 67. The court
added:
“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. ***
In those circumstances, the rationale for declining to attribute to the defendant delays
in connection with the original charges does not apply.” Id. at 67-68.
Thus, in determining whether the Williams rule will be applied, courts must compare the
original charge to the new charge and discern whether the former provided sufficient notice of
the latter, such that the defendant would not be subject to the “ ‘trial by ambush’ ” meant to be
remedied by the Williams rule. E.g., id. at 68-70; People v. Staake, 2017 IL 121755, ¶¶ 40-45.
¶ 17 With the foregoing principles in mind, we turn to the arguments of the parties on appeal.
Defendant contends that count III (bodily harm domestic battery) was subject to compulsory
joinder with counts I and II (insulting contact domestic battery). See 720 ILCS 5/3-3(b) (West
2016). He argues that the Williams rule should be applied because count III was sufficiently
different from the earlier charges such that he was not on notice. Defendant concedes that the
395 days that elapsed between his speedy trial demand and his trial were largely attributable
to him as to counts I and II. However, he maintains that those delays are no longer attributable
to him as to count III under the Williams rule, resulting in a trial on that charge well outside
the 160-day window. Defendant concludes that defense counsel rendered ineffective assistance
by failing to move for the dismissal of count III.
¶ 18 The State, for its part, concedes many of defendant’s points. For instance, the State does
not dispute that if the Williams rule is applied then the delays attributable to defendant on
counts I and II are not attributable to him on count III, such that a speedy trial violation
occurred with respect to the later charge. Likewise, the State does not dispute that counsel
would have been ineffective for failing to move to dismiss count III in that situation nor that
the remedy for such ineffectiveness is outright reversal. The State’s only argument is that the
Williams rule should not be applied in this case. Moreover, the State does not argue that count
III was not subject to compulsory joinder; rather, it argues that counts I and II provided
sufficient notice to defendant of the later charge, such that the rationale of the Williams rule
would not be served by application of the rule. That question is thus the primary focus of our
analysis.

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¶ 19 In People v. Woodrum, 223 Ill. 2d 286, 291-92 (2006), the State originally charged the
defendant with seven counts of child abduction, alleging that the defendant had lured children
into a dwelling without the consent of their parents. The State subsequently filed amended
indictments charging the same offenses, but adding the phrase “ ‘for other than a lawful
purpose’ ” to the charges and correcting scrivener’s errors. Id. at 292. The supreme court ruled
that the Williams rule should not be applied and that delays attributable to the defendant on the
original charges were thus also attributable to him on the later charges. Id. at 301. The court
reasoned that both the statutory charges as well as the alleged conduct were exactly the same
in the original and new charges, such that the defendant could not possibly have suffered any
surprise. Id. at 300-01.
¶ 20 In Phipps, the State originally charged the defendant with reckless homicide, alleging that,
while under the influence of alcohol and acting recklessly, the defendant had caused a death
by operating a motor vehicle at a high rate of speed and failing to stop at a red light. Phipps,
238 Ill. 2d at 57. It later charged the defendant with aggravated driving under the influence
(DUI), alleging that he caused a death while operating a motor vehicle while under the
influence of alcohol. The supreme court again found the Williams rule inapplicable, pointing
out that “the original indictment and subsequent information alleged the same conduct,”
namely, driving while under the influence of alcohol and causing a death. Id. at 68. The court
also pointed out that reckless homicide and aggravated DUI statutes, while different, “had
essentially the same elements and provided the same penalty.” Id. The Phipps court thus
concluded that the original reckless homicide charge provided the defendant with adequate
notice to prepare his defense for the aggravated DUI charge. Id. at 69.
¶ 21 In People v. Hunter, 2013 IL 114100, ¶¶ 5-6, the State charged the defendant with
possession of cannabis with the intent to deliver and, much later, armed habitual criminal and
unlawful use of a weapon by a felon. The supreme court found that the charges were subject
to compulsory joinder and applied the Williams rule in finding that the defendant’s right to a
speedy trial had been violated. Id. ¶ 27. Apparently because of the obvious differences between
the two charges, the court did not engage in an adequate notice analysis. See id.
¶ 22 In Staake, the defendant was initially charged with second degree murder, in that he
committed first degree murder while acting under a sudden and intense passion. Staake, 2017
IL 121755, ¶ 3. The State would later charge him with first degree murder. Id. ¶ 4. In finding
the Williams rule inapplicable, the court pointed out that both charges alleged the commission
of first degree murder and that both contemplated the same conduct. Id. ¶ 40. The court also
noted that the two charges would be subject to the same potential defenses. Id. ¶ 41. To that
point, the court emphasized that defense counsel himself had indicated that the amended charge
would not impact his preparation for trial. Id. While the Staake court conceded that first degree
murder and second degree murder carried significantly different potential penalties, it
concluded that “the difference in penalties under the circumstances of this case does not alone
suffice to render the first degree murder charge ‘new and additional.’ ” Id. ¶ 44.
¶ 23 Finally, in People v. Moffett, 2019 IL App (2d) 180964, ¶ 5, the State originally charged
the defendant with aggravated battery based on bodily harm, alleging that she bit the fingers
of a correctional officer. Later, the State added a charge of aggravated battery based on contact
of an insulting or provoking nature, alleging that the defendant bit a correctional officer “ ‘on
or about the body and/or hands.’ ” Id. ¶ 9.

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¶ 24 The Second District found that the rationale of the Williams rule would not be served by
applying it in that case. Id. ¶ 50. The Moffett court agreed that the new charge technically added
an element—making contact of an insulting or provoking nature—but held, citing Phipps, that
“not all variances in the elements between original and subsequent charges will render the
latter new and additional charges.” Id. ¶ 41. The court found that the original “bodily harm”
charge implicitly and necessarily contemplated contact of an insulting or provoking nature,
stating: “[I]magination strains to conjure a scenario in which the deliberate infliction of bodily
harm is not insulting or provoking.” Id. ¶ 43. The court thus concluded that the defendant
“should have anticipated that the State, having charged that defendant’s conduct caused bodily
harm, would in time also charge that it was insulting or provoking.” Id. 1
¶ 25 Review of the case law on the Williams rule thus reveals five factors relevant to whether a
defendant has received adequate notice of new charges. Foremost among these factors are
(1) whether the later-charged offense had the same elements as that in the original charge and
(2) whether the later charge alleged the same conduct as the original charge. E.g., Woodrum,
223 Ill. 2d at 301. Also relevant are (3) whether the later-charged offense carried the same
potential penalties as the offense originally charged (e.g., Phipps, 238 Ill. 2d at 69), (4) whether
both charged offenses are subject to the same defenses (Staake, 2017 IL 121755, ¶ 41), and
(5) whether the later charge follows naturally from the original charge, such that the defendant
would be inherently on notice (see Moffett, 2019 IL App (2d) 180964, ¶ 43).
¶ 26 In the present case, the State originally charged defendant with two counts domestic battery
based upon “physical contact of an insulting or provoking nature.” 720 ILCS 5/12-3.2(a)(2)
(West 2016). The conduct alleged in counts I and II was grabbing Griffith by the neck and
body slamming Griffith, respectively. In contrast, count III charged defendant with domestic
battery based upon “bodily harm.” Id. § 12-3.2(a)(1)). Count III alleged that defendant pushed
Griffith to the ground.
¶ 27 The domestic battery statute sets forth two distinct versions of the offense with different
elements and “distinct proof requirements.” Moffett, 2019 IL App (2d) 180964, ¶ 43. In short,
the later-filed charge in this case was a new offense containing new elements. While the Moffett
court opined that a “bodily harm” charge provided inherent notice of a forthcoming “insulting
or provoking contact” charge, the opposite is certainly not true. Id. The State’s original charges
provided no reason for defendant to assume that it would be adding a new, distinct charge 15
days before trial.
¶ 28 Furthermore, the State’s later charge in this case alleged new conduct. While he was
originally charged with grabbing Griffith by the neck or body slamming Griffith, the later
charge alleged that defendant pushed Griffith—a wholly distinct physical act. We are unaware
of any case in which a defendant was charged with both new elements and newly alleged
conduct, yet the Williams rule was found inapplicable. 2 Accordingly, we find that count III in
this case was “new and additional,” such that the Williams rule applies.

1
The Moffett court, in a footnote, explained that the defendant had not raised any issue with the
different alleged conduct between the two charges—biting fingers in the original charge versus biting
about the body and/or hands in the latter. Moffett, 2019 IL App (2d) 180964, ¶ 31 n.3.
2
We also credit defendant’s argument that while both forms of domestic battery are Class A
misdemeanors subject to the same statutory range of penalties, the “bodily harm” version of the offense
is likely to result in a comparatively harsher sentence.

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¶ 29 Pursuant to that rule, the same speedy trial clock applicable to counts I and II was
applicable to count III. Also under the Williams rule, the delays and continuances attributable
to defendant with respect to counts I and II are not attributable to him with respect to count III.
As a result, defendant was brought to trial on count III well outside of the 160-day statutory
period. See 725 ILCS 5/103-5(b) (West 2016). A motion to dismiss count III would therefore
have been meritorious, and defense counsel was ineffective for failing to bring that motion.
See Staten, 159 Ill. 2d at 431. Accordingly, we reverse defendant’s domestic battery conviction
under count III. See Boyd, 363 Ill. App. 3d at 1039.

¶ 30 III. CONCLUSION
¶ 31 The judgment of the circuit court of Fulton County is reversed.

¶ 32 Reversed.

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