dissenting:
The majority holds that the Class X version of criminal sexual assault is not a “new and additional” charge because no new element was added, which means “counts I and II[ ] both allege the same offense.” 373 Ill. App. 3d at 357. Because count II alleges the same offense, no ineffective assistance of counsel issue is raised founded on a claimed violation of the defendant’s speedy trial rights by the State’s filing of a new indictment more than 120 days after the start of the defendant’s continuous custody. While not providing direct authority for its “same offense” holding, the majority finds support under section 111 — 3(c) of the Code, which clearly states that a prior conviction is not an element of the “higher level classification of offense.” 725 ILCS 5/111 — 3(c) (West 2002). Hence, this case involves merely the use of a prior conviction to impose an “enhanced sentence,” which only comes into play at sentencing (725 ILCS 5/111 — 3(c) (West 2002)). 373 Ill. App. 3d at 357-58. According to the majority, “the precise issue before this court [is] the amendment of defendant’s charging instrument to seek an enhanced sentence based on a prior conviction.” 373 Ill. App. 3d at 359. I cannot agree.
The precise issue before us is whether the State has the right to bring a new indictment more than 120 days after the start of the defendant’s continuous custody. This case does not involve an “amendment.” The State did not seek to “amend the charge,” nor did the State seek to proceed “on motion,” as provided by section 111 — 3(d). 725 ILCS 5/111 — 3(d) (West 2002). Instead, the State proceeded by way of an indictment returned more than 120 days as provided in the speedy trial provision. As discussed below, this is not just a matter of form, but of substance.
The majority also points out that “notice to defendant is not at issue when the additional information to a charge is a prior conviction because defendant is presumably aware of his prior conviction.” 373 Ill. App. 3d at 358. While “notice” of a defendant’s prior conviction is not at issue, timely “notice” of the higher classification offense (and hence the corresponding penalties) returned by a new indictment is. In my judgment it was the State that was put on “notice” that it had 120 days from the start of the defendant’s continuous custody to file any new and additional charges. When it failed to do so, it lost that opportunity. In any event, section 111 — 3(c) clearly places the burden to provide “notice” upon the State and not upon the defendant. 725 ILCS 5/111 — 3(c) (West 2002).
New and Additional Charge
The defendant never made bail. He was arrested on June 11, 2002. On June 12, 2002, he filed a written demand for trial. On July 3, 2002, the defendant was charged by information with a single count, a Class 1 criminal sexual assault. On October 25, 2002, more than 120 days after his arrest and his written demand for trial, the information was superceded by a grand jury indictment charging the defendant with two counts, the original Class 1 offense and a Class X version of criminal sexual assault.
I do not agree that “new and additional” should be read to exclude the situation presented in this case. While the phrase “new and additional” is not contained in the speedy trial statute, it has been recognized as having particular significance “within the meaning of the speedy-trial statute.” People v. Woodrum, 223 Ill. 2d 286, 300, 860 N.E.2d 259 (2006).
I am persuaded that adding count II, charging a more serious offense by classification, falls within the plain and ordinary meaning of “new and additional.” The State began the prosecution of the defendant with a one-count information. It then sought to proceed to trial on a two-count indictment. It seems inescapable that adding a Class X offense to the originally filed Class 1 charge means that a “new” charge has been added.
It seems equally inescapable that going from a single-count charging instrument to a charging instrument with two charges means that an “additional” charge has been added. I submit there is no basis for the majority’s reading of “new and additional” to exclude the adding of an enhanced charge from the reach of this phrase. That an enhanced charge is based on the “same facts” with elements identical to the pending charges does not take the charge out of the plain and ordinary meaning of “new and additional.” Cf. People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 15, 585 N.E.2d 51 (1991) (when a term is not defined by statute, we may assume the term possesses its ordinary and popularly understood meaning).
The purpose of the rule, first enunciated in People v. Williams, 94 Ill. App. 3d 241, 418 N.E.2d 840 (1981), “is to prevent the State from surprising a defendant with new and additional charges, thereby circumventing the defendant’s statutory right to a speedy trial.” Woodrum, 223 Ill. 2d at 300. Allowing the State to add to the pending charge an enhanced version of that charge provides a means for the State to do precisely that — circumvent the defendant’s statutory right to a speedy trial. The open-ended right of the State, as found by the majority, to add a Class X version of that “same” offense to a pending charge beyond the 120-day speedy trial period is incongruous with the legislature’s intent clearly expressed in the speedy trial statute as to when “new and additional” charges may be filed. See People v. Williams, 204 Ill. 2d 191, 788 N.E.2d 1126 (2003).
Having concluded that counts I and II are but one offense, the majority states, “[Principles of compulsory joinder do not apply in this case because defendant was not charged with a ‘new and additional’ offense.” 373 Ill. App. 3d at 357. The majority offers no authority for this claim. My reading of our supreme court’s holdings in People v. Quigley, 183 Ill. 2d 1, 697 N.E.2d 735 (1998), and People v. Williams, 204 Ill. 2d 191, is that our analysis of a claim of a speedy trial violation involving charges not pending against the defendant at the time of his arrest or the filing of his written demand for trial must include consideration of “compulsory joinder principles.”
At oral argument the State conceded, as it must, that the original charge and the enhanced charge had to be tried jointly. I take the supreme court to mean exactly what it said in Quigley and Williams. “Once a speedy-trial demand is filed, the multiple charges are subject to the same speedy-trial period. If the charges are required to be brought in a single prosecution, the speedy-trial period begins to run when the speedy-trial demand is filed, even if the State brings some of the charges at a later date.” Quigley, 183 Ill. 2d at 13. “ ‘[Hjad the sexual assault charges been required under section 3 — 3(b) to have been joined, we would not allow the State to circumvent the original speedy-trial term.’ ” Williams, 204 Ill. 2d at 204, quoting People v. Gooden, 189 Ill. 2d 209, 222, 725 N.E.2d 1248 (2000). Given the analysis by our supreme court of such claims, it seems clear that the later-filed charge of the Class X version of criminal sexual assault was too late.
As the majority points out, the supreme court answered the question “whether continuances attributable to the defendant on the [pending] charge were attributable to him on the [later-filed charge]” in Williams, 204 Ill. 2d at 201. The supreme court said No. The majority seeks to distinguish this case from Williams by noting that Williams did not “involve [ ] a change in classification of the offense based on a prior conviction.” 373 Ill. App. 3d at 359. True, but I see no importance in that distinction. And, the majority puts forth no argument why that difference between the cases is a distinction worthy of a different outcome. The majority’s conclusion that “the speedy trial period was tolled when defendant agreed to numerous continuances between July 23, 2002, and [October 25, 2002]” (373 Ill. App. 3d at 359) is subject to the same fallacy that the majority in the appellate court employed in Williams. “ ‘[W]e continue to believe that it is illogical to hold that continuances which are attributable to a defendant on an original charge are not attributable to a defendant on a latter-filed [sic] charge where that charge is subject to compulsory joinder.’ ” Williams, 204 Ill. 2d at 205, quoting People v. Williams, No. 5 — 99— 0452 (unpublished order under Supreme Court Rule 23). The supreme court rejected that logic. “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.” Williams, 204 Ill. 2d at 207. In the words of the first Williams case, “ ‘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.’ ” (Emphasis in original.) Williams, 204 Ill. 2d at 201, quoting Williams, 94 Ill. App. 3d at 249.
Section 111 — 3(c)
Section 111 — 3(c) of the Code is a notice provision enacted for the benefit of the defendant. “The legislature enacted section 111 — 3(c) to ensure that a defendant received notice, before trial, of the offense with which he is charged.” (Emphasis in original.) People v. Jameson, 162 Ill. 2d 282, 290, 642 N.E.2d 1207 (1994). I find no authority, and the majority offers none, that section 111 — 3(c) also serves as a savings provision for the State to invoke when it fails to file an enhanced offense against a defendant within 120 days of the start of his continuous custody or, under the majority’s version, a new count charging the “same offense” but subject to an enhanced sentence based on a prior conviction. Why should this “same offense” be treated any differently than any other offense that is subject to compulsory joinder, when the State itself treated count II as a distinct offense by seeking a grand jury indictment to add that charge? My difference with the majority is that I find no authority conferring upon the State the right to add a higher classification of the pending charge by way of a new indictment under section 111 — 3(c) after the expiration of the 120 days set out in the speedy trial statute. Nor has the State offered any policy considerations to support reading section 111 — 3(c) this way.
The majority’s interpretation turns section 111 — 3(c) from a notice provision meant to inform a defendant of the penalties he will face upon conviction into a provision allowing the State to add a greater classification of the same offense beyond the speedy trial term. This is not only unwarranted based on the language of section 111 — 3(c) but also violates the long-observed tenet that a criminal statute is to be strictly construed in favor of the accused. See People v. Chandler, 129 Ill. 2d 233, 254, 543 N.E.2d 1290 (1989). Statutory interpretation is not a tool to be utilized by courts attempting to remedy apparent oversights by rewriting statutes in a way that contravenes their clear and unambiguous language. People v. Taylor, 221 Ill. 2d 157, 162-63, 850 N.E.2d 134 (2006). In effect, the majority’s reading of section 111 — 3(c) would create the very type of “loophole” the supreme court made clear it intended to close in Williams. Williams, 204 Ill. 2d at 207 (“we close a loophole which would allow the State to circumvent a statutorily implemented constitutional right”). Nor has the State offered any excuse for its late addition to the pending charge of an enhanced version of that charge, and the majority has insisted on none. To the extent the defendant was “aware of his prior conviction,” the State was equally “aware of his prior conviction” as the Office of the Cook County State’s Attorney was the prosecuting agency that obtained that very conviction. 373 Ill. App. 3d at 358.
Conclusion
In my judgment, the rule should be simple: if a count is added by way of a new charging instrument, there is a “new and additional” charge for purposes of speedy trial analysis. In this case, because the State elected to proceed by way of a new indictment to add the enhanced offense, there was no “amendment” of the pending charge to the exclusion of the speedy trial provision. See 725 ILCS 5/111— 3(d) (West 2002).
Accordingly, the defendant has established that his trial counsel was deficient in failing to move for a dismissal of the later-filed charge and, to the extent the defendant was convicted of a Class X offense and sentenced accordingly, he was prejudiced. See People v. Staten, 159 Ill. 2d 419, 431, 639 N.E.2d 550 (1994). (In fact, the defendant here faced up to a 30-year sentence for the Class 1 conviction under the extended-term provisions based on his prior conviction. 730 ILCS 5/5 — 5—3.2(b)(1), 5 — 8—2 (West 2002); see People v. Pittman, 326 Ill. App. 3d 297, 761 N.E.2d 171 (2001).)
I would remand this case for sentencing under the Class 1 offense the defendant was originally charged with and properly convicted of. See People v. Dixon, 91 Ill. 2d 346, 353-54, 438 N.E.2d 180 (1982) (remand for sentencing on lesser charge where conviction and sentence of greater offense vacated).
Therefore, I dissent.