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 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, 228 Ill. 2d 312, 322 (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”); 382 Ill. App. 3d at 1050 (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, 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.” 382 Ill. App. 3d at 1057. 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. 382 Ill. App. 3d at 1057. 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 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.) 382 Ill. App. 3d at 1054. 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.) 382 Ill. App. 3d at 1055, 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. 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.
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.
The majority’s position here is doubly confusing because it relies strictly on the label “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 382 Ill. App. 3d at 1057 (“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.
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.