dissenting:
I respectfully dissent. In my opinion, our original decision permitting the State to charge defendant with first-degree murder established the law of the case, and our supreme court’s decision in People v. Williams, 204 Ill. 2d 191 (2003), is not contrary to this holding. For the following reasons, I would affirm defendant’s conviction of first-degree murder.
LAW OF THE CASE DOCTRINE
Under the law of the case doctrine, issues presented and disposed of in a prior appeal are binding and control in the trial court upon remand, as well as in the appellate court in a subsequent appeal (Zabinsky v. Gelber Group, Inc., 347 Ill. App. 3d 243, 248 (2004)), unless the facts presented are so different as to require a different interpretation (Bilut v. Northwestern University, 296 Ill. App. 3d 42, 47 (1998)). “The purpose of the law of the case doctrine is to protect settled expectations of the parties, ensure uniformity of decisions, maintain consistency during the course of a single case, effectuate proper administration of justice, and bring litigation to an end.” People v. McDonald, 366 Ill. App. 3d 243, 247 (2006). There are two exceptions to the law of the case doctrine, neither of which is applicable in this case. Foster v. Kanuri, 288 Ill. App. 3d 796, 799 (1977). The first exception applies where our supreme court, following the first appeal, makes a contrary ruling on the precise issues of law on the which the appellate court had based its prior decision. Martin v. Federal Life Insurance Co., 164 Ill. App. 3d 820, 824 (1987). The second exception allows the reviewing court to depart from the doctrine of the law of the case if the court finds that its prior decision was palpably erroneous. Foster, 288 Ill. App. 3d at 799. Unlike the majority, I do not believe that our original decision is contrary to Williams or “palpably erroneous.” Thus, the law of the case doctrine bars relitigation of whether the State properly charged defendant with first-degree murder.
The speedy-trial period for the original second-degree-murder charges also applies to the first-degree-murder charges only if the first-degree-murder charges are “new and additional charges” that are subject to compulsory joinder. In defendant’s first appeal, this court held that the first-degree-murder charges did not constitute “new and additional charges,” because the elements of first-degree murder and second-degree murder are identical. People v. Izquierdo-Flores, 332 Ill. App. 3d 632, 638 (2002). In other words, the first-degree-murder charges did not require defendant to defend against any elements that were not before the trial court previously, and allowing the State to proceed on the second indictment did not frustrate the purpose of the speedy-trial statute. Izquierdo-Flores, 332 Ill. App. 3d at 639. Given the unique relationship between first- and second-degree murder, as discussed below, I see no reason to depart from our earlier ruling.
Section 9 — 2 of the Criminal Code of 1961, which defines the offense of second-degree murder, provides that “[a] person commits the offense of second degree murder when he commits the offense of first-degree murder *** and either of the following mitigating factors are present.” (Emphasis added.) 720 ILCS 5/9 — 2 (West 2000). Accordingly, when defendant was originally charged with second-degree murder, he was also, in effect, being charged with first-degree murder. See People v. Thompson, 354 Ill. App. 3d 579, 584 (2004) (first- and second-degree murder both require the same mental state of either intent or knowledge); see also People v. Parker, 358 Ill. App. 3d 371, 377 (2005) (the elements of first- and second-degree murder are identical). In order to convict defendant of second-degree murder, the State must still prove all of the elements of first-degree murder. See D. Shanes, Murder Plus Mitigation: The “Lesser Mitigated Offense” Arrives in Illinois, 27 J. Marshall L. Rev. 61, 114 (1993). Stated differently, a defendant cannot be found guilty of second-degree murder if the State fails to prove any of the elements of first-degree murder. See 27 J. Marshall L. Rev. at 114.
In People v. Jeffries, 164 Ill. 2d 104 (1995), our supreme court made clear that second-degree murder is not a lesser included offense of first-degree murder, but is more accurately described as a “lesser mitigated offense of first-degree murder.” Jeffries, 164 Ill. 2d at 122. This characterization reveals the unique relationship between first-degree and second-degree murder:
“Where a defendant has been convicted of a lesser included offense, one may assume the State failed to prove an element of the greater offense or that the defendant acted with a less culpable mental state than that required to prove the greater offense. This differs from the situation involving first and second degree murder, where the State must prove each of the elements of first-degree murder beyond a reasonable doubt before the fact finder may consider whether a mitigating factor has been established that would reduce first degree murder to second degree murder.” (Emphasis in original.) People v. Kauffman, 308 Ill. App. 3d 1, 10 (1999).
Indeed, second-degree murder differs from first-degree murder only because of the presence of a statutory mitigating factor, such as a serious provocation or an unreasonable belief in justification. People v. Porter, 168 Ill. 2d 201, 213 (1995). However, mitigating factors are not elements of second-degree murder; they exist merely to mitigate one’s culpability and to lessen the resulting sentence imposed. See D. Sternicki, The Void Left in Illinois Homicide Law After People v. Lopez: The Elimination of Attempted Second Degree Murder, 46 DePaul L. Rev. 227, 253 (1996); see also People v. Golden, 244 Ill. App. 3d 908, 918 (1993) (the mitigating factors are not elements of the offense but are affirmative defenses that do not bear upon the ultimate burden of proof). Because second-degree murder does not contain different elements from first-degree murder, the second indictment charging first-degree murder did not require defendant to defend against any elements that were not before the trial court previously.
Furthermore, while defendant argues that, by being charged with first-degree murder, he was then required to prove the existence of a mitigating factor to reduce the offense to second-degree murder, I disagree. In our original decision, we specifically found that the second indictment alleging first-degree murder did not necessarily place any additional burden on defendant. Izquierdo-Flores, 332 Ill. App. 3d at 638. This is because defendant was not required to prove a mitigating factor. See Golden, 244 Ill. App. 3d at 917. As defense counsel argued on remand, the burden was not exclusively on defendant to establish a mitigating factor. While defendant could provide such evidence, defendant was not required to do so, because the State’s evidence could establish a mitigating factor as well. See Golden, 244 Ill. App. 3d at 917. Pattern jury instructions for determining first- or second-degree murder state that a defendant is not required to present evidence of a mitigating factor; rather, the jury is directed to consider all of the evidence to determine the existence of a mitigating factor. Golden, 244 Ill. App. 3d at 917.
Because the first-degree-murder charges were essentially before the court from the beginning of the prosecution, and because the second indictment charging first-degree murder did not add new elements to the charged offense of second-degree murder, the first-degree-murder charges did not constitute “new and additional charges.” As a result, the compulsory-joinder statute was not implicated, and Williams is inapplicable. Unlike the case at bar, which turns on the unique relationship between first- and second-degree murder, Williams clearly involved “new and additional charges.” There, the defendant was charged with first-degree murder 168 days after he was charged with contributing to the criminal delinquency of a juvenile. Williams, 204 Ill. 2d at 196. Because first-degree murder was clearly a “new and additional charge” that was based on the same act and therefore subject to compulsory joinder, the delays attributable to the defendant on the original contributing charge were not attributable to the defendant on the murder charge. Williams, 204 Ill. 2d at 207-08. As previously stated, this case differs from Williams in that defendant here was not faced with “new and additional charges”; essentially, the first-degree-murder charges were before the court from the beginning of the prosecution. Accordingly, the delays attributed to defendant in connection with the second-degree-murder charges also applied to the first-degree-murder charges, and the speedy-trial term had not yet expired when the State filed the second indictment. Izquierdo-Flores, 332 Ill. App. 3d at 639. Thus, Williams does not change the outcome of this case, and I see no reason to modify our previous ruling.
GUILTY PLEA
Because I would not reverse defendant’s conviction in light of Williams, I also address defendant’s three remaining contentions. With respect to his guilty plea to second-degree murder, defendant first argues that the trial court abused its discretion by failing to accept his plea. Second, defendant argues that his counsel was ineffective for failing to obtain a ruling on his guilty-plea offer on January 16, 2001. A review of the facts reveals that both arguments lack merit.
On January 16, 2001, the State moved to file first-degree-murder charges and dismiss the second-degree-murder charges. That same day, defense counsel informed the court that defendant was prepared to offer a “straight open plea” to the pending second-degree-murder charges. The court reserved ruling on the State’s motion, because the State planned to present the first-degree-murder charges to a grand jury the next day. In addition, the court expressed concern regarding defendant’s speedy-trial rights, noting that a speedy-trial demand had been filed on September 7, 2000. Accordingly, the court continued the case until January 18, so that both parties would be prepared to address the speedy-trial issues that arose in response to the State’s motion.
On January 18, defendant moved to dismiss the indictment charging first-degree murder, and the court heard arguments on January 25. On January 29, the court granted defendant’s motion to dismiss the first-degree-murder charges. Defendant then sought leave to enter his guilty plea to second-degree murder. The court reserved ruling on the plea until the State decided whether it wished to appeal the order granting defendant’s motion to dismiss the first-degree-murder charges. The court stated that, while it was not precluding defendant from entering a guilty plea, it would reserve “actually taking it.” On February 5, the State advised the court that it would appeal its decision. On that date, defendant again offered a “straight open plea” to the pending second-degree-murder charges. The court reserved ruling. On February 8, the State’s motion to reconsider was denied, and the State was given leave to file a certificate of impairment and a notice of appeal. Defendant sought release pending appeal, under Supreme Court Rule 604(a)(3) (188 Ill. 2d R. 604(a)(3)), arguing that he had tried to plead guilty to second-degree murder, but had not been allowed to do so. The court denied defendant’s motion for release, finding compelling reasons to hold him on bond.
It is within the trial court’s sound discretion to accept or reject a guilty plea. People v. Peterson, 311 Ill. App. 3d 38, 45 (1999). We review the court’s decision for an abuse of discretion, and we will not substitute our judgment for that of the trial court. Peterson, 311 Ill. App. 3d at 45. An abuse of discretion occurs when no reasonable person would agree with the decision, when the decision is arbitrary, unreasonable, or unconscionable, or when the decision is not based on facts, logic, or reason. Peterson, 311 Ill. App. 3d at 45.
Based on all of the facts present in this case, the trial court did not abuse its discretion in refusing to accept defendant’s guilty plea. There is no absolute right to have a guilty plea accepted by the trial court. People v. Henderson, 211 Ill. 2d 90, 103 (2004). Moreover, as the State points out, defendant’s plea offers were not made following a negotiated plea agreement. While the parties had engaged in plea negotiations over several months, it was not until the State announced its intention to file first-degree-murder charges that defendant offered a “straight open plea” to the pending second-degree-murder charges. The trial court was not obligated to accept the plea so that defendant could avoid being charged with first-degree murder. This is because “a person can be prosecuted for the greatest offenses violated by his conduct,” and a defendant may not attempt to eliminate this option of the State. People v. Fernetti, 117 Ill. App. 3d 44, 52 (1983), rev’d on other grounds, 104 Ill. 2d 19 (1984). There is “no rationale which suggests that the legislature intended to create a statutory right requiring the acceptance of a proffered plea of guilty as to a charge chosen by defendant.” (Emphasis added.) Fernetti, 117 Ill. App. 3d at 52.
In reserving its ruling on defendant’s guilty plea offers, the trial court was attempting to strike a balance between defendant’s speedy-trial rights and the State’s right to prosecute defendant on first-degree-murder charges. Once the court granted defendant’s motion to dismiss the second indictment charging first-degree murder, and the State decided to appeal that decision, it appears that the trial court delayed the proceedings on the second-degree-murder charges until the appeal was resolved. Given the uncertainty of the outcome on appeal, coupled with the fact that defendant could not attempt to eliminate the State’s option of charging him with first-degree murder by pleading guilty to second-degree murder, I cannot say that the trial court abused its discretion in refusing to accept defendant’s guilty plea.
Defendant next maintains that his counsel was ineffective for failing to obtain a ruling on defendant’s “straight open plea” to the second-degree-murder charges on January 16, 2001. According to defendant, defense counsel failed to obtain a ruling on the plea offer and acquiesced in a two-day continuance during which the State obtained an indictment charging first-degree murder.
Claims based on the ineffective assistance of counsel are analyzed under the test established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Graham, 206 Ill. 2d 465, 476 (2003). “Under Strickland, a defendant must prove that defense counsel’s performance fell below an objective standard of reasonableness and that this substandard performance created a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.” Graham, 206 Ill. 2d at 476. A reasonable probability means a probability sufficient to undermine confidence in the result of the trial. Graham, 206 Ill. 2d at 476. The defendant must satisfy both parts of the Strickland test in order to establish that he received ineffective assistance. Graham, 206 Ill. 2d at 476. Thus, if the defendant suffered no prejudice, we need not consider whether counsel’s performance was deficient. Graham, 206 Ill. 2d at 476.
Defendant fails to establish either prong of the Strickland test. Defense counsel provided effective assistance when he offered a “straight open plea” to the second-degree-murder charges upon learning that the State intended to file first-degree-murder charges. As stated previously, the trial court was not obligated to accept defendant’s “straight open plea.” Indeed, the court reserved ruling on defendant’s offer, as well as the State’s motion to dismiss the second-degree-murder charges and file first-degree-murder charges, in an effort to protect defendant’s speedy-trial rights. Defendant cites no authority for the proposition that defense counsel should have tried to “force” a ruling when the court specifically continued the case so that the parties could prepare arguments. Following the two-day continuance, defense counsel moved to dismiss the indictment charging first-degree murder. Once the trial court granted this motion, defense counsel again sought leave to enter defendant’s guilty plea to second-degree murder. In fact, defense counsel renewed defendant’s plea offer on three separate occasions prior to the court denying the State’s motion to reconsider. Pending the State’s decision to appeal, the court indicated that, while it was not precluding defendant from entering a guilty plea, it would reserve “actually taking it.” Accordingly, defense counsel’s conduct fell within the wide range of reasonable professional assistance and constituted sound trial strategy. See People v. Makiel, 358 Ill. App. 3d 102, 106 (2005) (the defendant must overcome a “strong presumption” that his lawyer’s conduct falls within the wide range of reasonable professional assistance and that the challenged conduct constitutes sound trial strategy).
ADDITIONAL DAY OF CREDIT
Defendant also argues that he is entitled to an additional day of credit against his sentence. Because it is not clear from the record whether defendant is entitled to one day’s credit, I would remand with instructions that the trial court make this determination.
As a final matter, I question the procedural propriety of vacating defendant’s conviction and remanding the case on the second-degree-murder charges. On remand, the trial court specifically rejected defendant’s arguments regarding second-degree murder and instead found defendant guilty of first-degree murder. Because defendant has already been tried and convicted of first-degree murder, I am not convinced that the case law cited by the majority supports remanding the case on the second-degree-murder charges. In any event, I would affirm defendant’s conviction of first-degree murder.