highlight all right good morning counsel if you are ready we will proceed and i will start with mr panic you may go forward i thank you your honor good good morning your honors council may please the court my name is elaine a panic appearing on behalf of defendant appellant sets drier mr dreier had been living in texas at the time of the offenses at issue in this case which were all predicated on his allegedly communicating with two hundred and ten year old boys by means of an x box gaming system with live video chatting capabilities the original indictment filed in november two thousand and fifteen charged mr dreier with thirteen counts including predatory criminal sexual assault sexual exploitation of a child indecent solicitation of a child an aggravated criminal sexual abuse mr dreier was taken into custody in illinois under center th two thousand and fifteen and it was on that date that the one hundred and twenty day speedy trial term began to run six hundred days later on august th two thousand and seventeen after a number of continuances had been agreed to on the original charges the state filed a superseding indictment that included seven brand new charges of aggravated child pornography all of them class x it is mr driers contention on appeal that the new charges were subject to compulsory joinder with the original charges and that by failing to seek dismissal of counts fourteen through twenty on speedy trial grounds defense counsel rendered ineffective assistance the so called williams rule provides that when new and additional charges arise from the same facts as the original charges and the state had knowledge of those facts at the commencement of the prosecution this speedy trial term on the new charges is the same as on the original charges the only supreme court later clarified that the williams rule only applies when charges are subject to compulsory jointer but the key point here is that a defendant is not responsible for any delays he agreed to an additional charges were on the table to be clear you don't even reach the question of whether later charges are new and additional unless they're subject to compulsory joinder and compulsory joinder only applies when charges are based on the same acts so right off the bat there's some tension between those two standards but it's clear in this case that counts fourteen through twenty of the superseding indictment are based on the very same acts of penetration masturbation and fondling make up the original thirteen charges and the state essentially concedes as much in its brief so how can charges that are based on the same sexual acts be considered new an additional case law directs you to compare the original charging instrument with a later charging instrument to determine whether the original charges provided adequate notice of the later charges and while there are no hard and fast rules about when an earlier charge provides sufficient notice of a later charge reviewing courts generally look to see whether the earlier charge involved the same elements classification and penalty as the later charge for example and would draw the illinois supreme court found that in original charge of child abduction provided decision in moffitt and original charge of aggravated battery premised on bodily harm was found to provide sufficient notice of aggravated battery premised on insulting or provoking contact where the classification and penalties were the same and where the defendant might reasonably reasonably anticipate that the by a thing that gave rise to bodily harm might also be viewed as insulting and provoking in this case i'm like woodrum and i'm like moffat the original indictment did not provide adequate notice of the charges dryer would later face for starters the new charges are completely different to name all seven or for aggravated child pornography based on allegations of filming producing a film or  portrayal or soliciting an appearance in a film the original charges were sexual in nature sure but none of them involved allegations of either possessing or creating pornography as such the elements of the later charges are distinctly different than the elements of the original charges also since there were no incriminating files recovered from mr driers computer not even the discovery would have alerted him to the possibility of having to defend against pornography charges is also significant to the lack of notice in this case that the new charges are categorically more serious than all but two of the original charges all seven counts of aggravated child pornography in the superseding indictment are class x with  corresponding sentencing range of six to thirty years by contrast only two of the original counts for a class x while the remaining eleven range from class one to class for the illinois supreme court is cautioned against this very scenario where the state essentially circumvents the defendant speedy trial right purposely or not by lowering him into agreed continuances on lesser charges all the while preparing its case for trial on more serious not yet pending charges so the state's primary argument here that the original and later charges are so much the same that driers agreed continuances on the earlier charges can be counted against him on the later charges simply does not hold water that being the case this court's two thousand and six decision and void provides the proper framework for driers ineffective assistance of counsel claim boyd teaches that a pretrial motion for dismissal on speedy trial grounds would have been successful and defense counsel did not pursue it counsel was ineffective and the proper remedy on appeal is dismissal of the charges in fact this case proved presents an even stronger claim of ineffective assistance than boyd since the seven class sex charges added to driers indictment had already passed the rex parade day the moment they were filed alleviating any doubts about potential trial strategy the prejudice to mr dreier is also particularly clear since the state ended up dropping most of the original counts before trial and focusing its prosecution on the new counts now the state says that's not fair that had it known that counts fourteen through twenty were no good it never would have moved to dismiss counts one and two and counts five through thirteen but to be blunt this is really not mr driers problem if the state wanted to pursue pornography charges it should have filed them back in two thousand and fifteen this is not a situation where new evidence came to light it all came down to this nanny cam footage that c h his mother gave to police the day of the offense i mean missed the boat on the original charging decision the state tried to bring a number of  new more serious charges over a year later but at that point they should have known the risks they were taking and dismissing most of the original charges likewise defense counsel should have known the superseding indictment was problematic because counts fourteen through twenty were new and additional charges that had to be joined with the original charges in this case and because mr dryer had already been in custody for more than a year and a half by the time they were filed defense counsel's failure to seek the dismissal on speedy trial grounds was ineffective and those counts should now be dismissed outright thinking are you finished and i'm finished thank you i thought you might be coming back thank you all right just just parkhead you have questions of miss panic yes i do think discharged and john logan was appointed and then i believe john logan appeared the same day this superseding indictment was filed and mr familiar has been gauged in police discussions basically throughout the indictment the result of that yeah well i mean they say they didn't say anything about him is filming or depicting you know by means of a visual medium and also i mean that their nanny cam was kind of this silent witness it wasn't something he orchestrated in past tense but charges bare their sexual and conduct related but had nothing to do with either recording or memorializing or transmitting something in a fitted the sexual acts correct yes but again there was no allegation that mr dreier created that recording so who that this is not a offer well to be clear it's always been our position that compulsory joyner is required and that the charges are new and additional the difference in focus between the opening and reply has to do with you know learning where the state was going to disagree with us or not the fact that he was on an alert that new charges were coming really has nothing to do with the analysis about whether the original charges provided sufficient notice of the later charges and that's that's really all that matters according to the case law that's all that matters it doesn't matter that he was told that additional truck would cost no because at that point i mean i think we're talking a year into the case at least when that happened so even then those new charges would have been untimely so telling him you're about to face some charges that if your attorney is on the ball could be dismissed on understand your position be the images are were taken from the nanny cam they were not taken from the defendant's equipment's is that a fair statement correct so is that also your position that if he's put on notice that there are new charges coming there was no indication on the record at least as to what those new charges would be well i think there was you know since there were discussions and plea negotiation clean ago she is happening it's entirely possible that they had a heads up about the nature of the charges but again the fact that those discussions were taking place after this bt trial term had run and the case law directs us to compare only the original charging instrument with the later charges to determine whether notice was sufficient i don't think that it matters that he you know may have gotten a heads up before this superseding indictment was actually filed and again so i'm clear your position as to why there's no notice as to the later charges is because the earlier charges do not mention creating possessing  opportunity to see the on filed superseding indictment before it was filed during those plea negotiations i don't know for a fact that he saw that but assuming that's the case i don't think it changes the analysis well the issue that you're making your your you are contending is the lack of notice even before they were filed i believe the record indicates that counsel was given an on file copy of the proposed charges and so that certainly would provide would indicate some sort of notice would net this isn't notice in an abstract sense it's specifically having to do with the notice of the later charges created by the language in the original charges so what happened after the original charges isn't really material the case is williams steps they're all clear that you have to compare the charging instruments to resolve whether the defendant had notice of the later charges essentially to see whether the defendant knew what he was agreeing to when he was agreeing to these continuances so the fact that you know more than a year later that there may have been a heads up about additional charges coming doesn't alleviate the prejudice that's the primary concern in those cases a good part of  that st year after he was arrested your client was fighting extradition mohsni he wasn't to apply and i mean he was brought into custody in illinois in december so you know the they were they were rather fixated between the parties on whether he would be extradited or not were they again that's mostly that's before i kind of get involved so it's not something i know a lot of details about but but you know that was an issue early on ok and and once he got here were the record reflects although i can't say exactly what they were that there were other pretrial motions that were argued were filed and argued weren't there yes ok so they're not just concentrating on the language the notice or anything of the indictment they all relate to basically your client's freedom isn't that correct while there were some motions to dismiss the charges on other grounds i guess i'm i'm not understanding where you're going with the  question well the issue is you say that it took up to a year before they even considered filing these right there are other things going on that might have precluded filing these indictments the superseding  t yes but even if i'm assuming that you know mr dreier was agreeing to either causing our agreeing to the delays that happened probably until you know this superseding indictment was filed but the whole point of the case is we're relying on is that those delays can only count against him for the charges that he knew were on the table based on the indictment that was originally filed so it doesn't there's not a dispute about his being responsible for those delays on the original charges it's strictly about whether those can also be applied to the new charges when you say that the new charges this superseding indictment included charges that were more serious that not exactly accurate is it well it is accurate in the sense that the counts one  indictment those don't have anything to do with the sexual acts alleged in the previous class sex offenses in counts one dollar and two dollars and then the nd point which i think we made in the brief was that even though there were a couple of prayer classics charges the state's case is likely a lot harder to prove on those offenses they were essentially charging him with the physical acts of assault when everybody agrees he was in another state and so it would be a much more complicated sort of agency theory that the state would have to prove it trial so to the extent that he knew he was facing those charges he would hear his counsel may have been more confident about a better outcome on those than on the charges the seven classics charges he ultimately faced and he's are often confident that they can get their client exonerated on certain cases and they're often wrong isn't that correct absolutely yeah and so you've got you still have classic felonies in the initial indictment and hard to prove i don't think is really a concern a factor that's considered when we talk about serious or not serious offenses more serious or less fear serious correct that's true but again the class of the offense in the penalty range is just part of the analysis and there's really no dispute that the earlier charges don't include the sorts of allegations of filming or creation of a film or depicting in a visual medium that the pornography charges include in boyd which you rely on pretty heavily in your analysis in that case the charges were known where they had a charges were filed it was admitted or this case well it's certainly controlling on the framework of the and effective assistance claim and the standards that apply i think it's instructive on the factual elements sense you know in that case he was charged with aggravated battery in armed robbery and later on brought in some serious home invasion charges that ended up having to be dismissed so i think there are real parallels even if the actual points of dispute in that case are different thank you do either of my colleagues have questions based upon mine you know or do you know i think you are just a substitute just very briefly start by answering a couple of the questions that just a roast or questioning of though just a spark had actually just pointed out one of my primary answers which is that the charges absolutely do say they say he solicited over the internet in addition you can watch the as the card video and everything you see c h the victim you know is this a good angle which camera angle can you see my this way i can you see how long do i continue to masturbating with this putting till we can play the game again don't know is this good can you see is this better and you can see that so that's the evidence but it's also that the charges say that he in fact solicit the solicited over the internet and discussed all of this over the internet in terms of the charges the pornography charges they are in fact hold pornography but you do need to look at those elements that are underlying it and they do in fact fit within the course of conduct that was already charged the draft the draft of the indictment was in fact tendered prior to the  introduction of the newest attorney which didn't defendant demanded of a rd lawyer and that was in april of two thousand and seventeen and then it was tendered and they actually had an offer or that included those charges then the newest attorney asked or the newest attorney came in which was i think was logan he consented to a four hundred and two conference which included consideration of those charges as well there were pretrial motions that defendant had filed which were not proceeded on partly because they knew offers would be withdrawn if they did in fact proceed on them but and then discovery was voluminous everybody agreed on that there also was a contemplation of whether or not defend it was going to engage in a sex offender evaluation for the purposes of the negotiations and so that also was part of the delay which was record at card regardless of any manipulations or actions by the defendant regardless of any prejudice to the victims and regardless of any prejudice to the people in let's the pit unless the defendant one hundred percent concedes that the people can reinstate the eleven charges that they just missed it's really imperative to see the whole picture here and i'm page seven of the reply brief it's pretty clear that they're not just going to concede that there isn't any dispute that defend committed these horrendous and disgusting acts against the ten year old boys he was instructing them to do things over the internet and you can watch them on the card on the video because of the nanny cam put a pen in your do you know take the putting and how long do i have to keep doing this and go get me your friend have a friend come over so you guys can do acts of penetration together and with objects it's horrendous and that certainly was a notice to the defendant of the that it was on the the the cd car the s d card i'm sorry the video as far as whether or not just cendant preserved it that's really not the issue for those charges it doesn't say anything about preserving it says depicting it in an in and a visual manner which over the internet also applies this electronic communication and it was in fact over the x box via an x box camera that c h had on his hand but the defendant was the one directing everything about the angles and all of that the defendant actually concedes that there was no plane error and i just want to say the people resent the claim that this is somehow disingenuous to raise the fact that plane error was not raised versus ineffective assistance disingenuous means dishonest and absolutely it was not only wholly appropriate but it would have been remiss not to point it out so then you have to look at the strickland analysis and whether or not it impacts these charges and i don't believe it does the defendant agreed to each continuance each and every one up until the time and then again past when these were filed he continued to grade a continuances after the these were filed he wanted to engage in for oh choose they wanted to plan strategy they wanted to file pretrial motions all of those had yet to be litigated defendant was the one who requested having a rd lawyer and obviously at that point the court the case was not going to be ready for a trial because the new counsel needed to get time to prepare  up to speed on the discovery and litigate all of the defendant's liggett the defendant's own litigated pretrial motions which you know the defendant wanted to litigate the very st court date defendant's very  attorney which was per perec i believe it was on december of two thousand and fifteen record for we are not asking for a speedy trial and he continued in that vein throughout the entire time he had  hundred a speedy trial but at the same time he was asking for new counsel and obviously new counsel was absolutely not going to be ready to go the the charges at issue were like i said introduced before or logan came on board through a draft a discussion in court and then actually a draft of the indictment plus an offer including those things and they continued again as i said to engage in forward to use after the new charges were brought we cannot at this point put the the victims most importantly or the people in the same position because essentially this was not hobson's choice this was not an ambush and this was not the people lowing the defendant to the delays if anything it's now the defendant lowing the state into you know choosing right before trial which is knots an unacceptable strategy which charges they're going to proceed and not proceed on it was a few days before trial that the choice the state did go ahead and dismiss those eleven very serious charges there were two class x s which had mandatory life plus nine other class one dollar to four dollars felonies that were also dismissed that might possibly have been consecutive served and defendant doesn't even concede that he would allow those to be reinstated so what defendant is doing is using all of this as a short sword instead of a shield which is not what you're supposed to do and in fact there is absolutely no showing that his trial strategy changed from the outset he was trying to hide behind as out of state resonate see his computer anonymity to conceal his identity and deny that there was proof that he was kill quote kill that my name is kill who is the one who directed the ten year old boy to engage in the for effect acts so it's not really the title of the charge as the court has alluded to somewhat during the questioning it really is the notice and there's no question defendant had noticed well before trial so we do in fact  ask the court to affirm thank you group yes he did and actually those that was the part when he asked for his rd lawyer it wasn't just about speedy trial but actually at that time if you look closely at the record the court also says this is the st time i have ever heard you say anything about speedy trial that was not where this was where this was headed or where this was progressing or where it was going so yes you know you can ask for one you hadn't you've you waived it you've asked for continue are allowed continuances and there is no speedy trial request in till now but you know clearly by requesting a new attorney you're waiving that now and this is the st time you're requesting it that's in the whole argument section you'll see and there wasn't the only complaint the other complaints had to do with alleged lack of communication in he did say he would have liked him to be proceeding on those motions to dismiss but again they also wanted for a few conferences and the state was going to withdraw offers if those pretrial motions were litigated so there was a conflict between i want to try to engage in negotiations and i want to l motions to dismiss july of twenty seven yes and it's during the argument pretty much that justice for kent was just referring to but at the same time he waived some of it because it was a he said  he wanted to counsel in the court very clearly explained that that was obviously going to delay it too and that would be attributed to him so he waived it all the way up until that point and in fact like a deserted look at page four it was we are not asking for a speedy trial that was the very st court date that's my two questions thank you thank you jeff jorgensen mislead although the allegation is that it is over the internet and that is technically within the the definitions in the corner of the statute this is not your usual for nagra free case where the defendant obviously knew about something because he was either recording it or he was preserving it on a computer or in this case it could have been a game so this is not your your classic pornography right it is it is unusual facts but there is nothing in the statute that requires any kind of recording or memorializ it just says depicting it and in fact the defendant was certainly directing it you can watch the video from the nanny cam and you see c h saying oh can you see this now is this good bit can you now see the hole  i mean is this close enough do i need to turn it all of that so the fact is whether defendant had the notice he had in fact the notice that he was soliciting these acts via discussions over the internet and he had all of that discovery so it's not it the fact that there was this nanny cam video as this is actually just well luckily that that's why the police became aware of it but it didn't it wasn't needed to complete the offense the offense was completed when the defendant said use your experts connect camera show me the sexual acts i want to see them did did the boys ever actually see kill did they actually see his face they heard i mean we see his face and know c h testified about that and what he said is that the camera on defendants and which would have been the connect camera was facing down so it was either completely blacked out on a table or occasionally he saw feet and legs as far a c h was concerned this was an eighteen year old because that's what kill told him he was and he was looking up to heaven trying to please them which actually you can see when he's like look i really do have if you were here on my ten year old penis to see that kill look at that so it  took some tracking down technology sometimes of course and criminals out wrong the language of the statute sometimes but it if it fits it was improper and it was a crime and it doesn't fact fit if it's all the language it just depending on which which way you look at it we absolutely could have proceeded on the charges that were in the original indictment and we can easily proceed on the ones that these that are at issue right and the fact remains he was according to the indictment on the internet and the that this could be could be an issue and could be within charges that were filed absolutely right thank you miss lee either my colleagues have questions based upon mine not do i have one additional question and it is your position that the knowledge you know the directing etc that you have just discussed that was included in the discovery that was sent to the defendant correct one hundred percent and when was that discovery tendered a problem by towards the beginning of the case they already had all the video so you would say within a month or two of the december date the time ok or just just a couple quick points if by my reading of the original charges the language about being by means of the internet only appears in some of those counts i believe seven and eight and ten and twelve and again it gets important since the analysis is comparing the old charges to the new charges that are the same to point out that then not all of the new aggravated child child pornography charges are based on the same acts that appear in counts seven eight hundred and ten dollars twelve cents so while we dispute that that language by means of the internet is provided sufficient notice that he would have to face classics aggravated child pornography charges even if you believe that that analysis only affects some of the charges not most of them additionally i wanted to reiterate that the fact that speedy trial was not raised in a more timely fashion by others the defendant or his attorney has everything to do with his attorney being ineffective which which is the heart of our claim i mean we're not we're not saying this happened correctly we're saying that his attorney made a mistake in additionally you know the state argues that this is so tremendously unfair to them and that it was so obvious to anyone i apparently looking at the original charges that pornography was at issue but i would suggest that perhaps the prosecutor didn't even think at that time that pornography was an issue and that's why that was not included in the original charging instrument and so  i think it's a little ironic to try to hold the defendant to a higher standard of awareness than the prosecutor who's charged with knowing the law and making smart decisions accordingly including the decision to dismiss a number of welcome the courts reversing i'm nd prong playing there rather than ineffective assistance if it would prefer but we did frame the issue in terms of an effective assistance because the case paralleled the employed case so strongly  well i think it's it's different because what's the same is the sexual conduct and that's what brings it in line with the compulsory joinder statute but what's different is the defendant's conduct and that's that couldn't be more clear in the later pornography charges we're talking about filming and depicting and creating and directing and there's none of that in the original charges in the original charges  internet language by my reading was not in all of the counts and so all of the sexual acts do not have that are in the new charges do not have a parallel in the old charges that include be by means of the internet language  addition i mean the fact of soliciting is not the same as either creating or possessing pornography and the fact that those differ is rich is evidence by the fact that pornography charges carry a more severe penalty than then some of the original charges and so what's the difference the difference is either memorializing it somehow or the defendant's agency in the process in filming or directing and that's goes elements are not attorney from the beginning basically is saying to the court we're not raising a speedy trial issue here we're not in a hurry to get this case set for trial and you and if i understood you correctly your position is that was in the state well i'm i guess i was not very precise and how i said that because the new charges weren't on the table i believe at the time he said that i'm so if we're talking about statements before the new charges were on the table to know that death is not a mistake then and there i mean here the these kind of cases you're generally looking for an offer from the state and defense counsel almost always are going to agree to that continu a mentor or a motion defendant in an attempt to get some opportunity for negotiation so tell me how you're waiving his speedy trial right a problem sure an active well it wasn't ineffective as to the original charges there's there's no contest that any of continuances he agreed to on the original charges can be properly attributed to the defendant the issue is whether and this is where the williams rule comes into play whether he can be held to those same agreed delays with respect to charges that were not yet pending at the time here made those agreements right and your position as we follow that to it to excel a logical conclusion is that you never had notice of pornography because only some of the original offenses said by way of the internet yes ok well i would i would assert that even the internet language is not specific enough to alert him to what was coming but even if you accept that then yes only some of the charges contain that language thank you very much i have no further questions thank you thank you just started this panic i have one question you have very carefully told us where certain language is in one and not in another in terms of the initial in the superseding indictment is there any requirement that every charge in the initial indictment must provide notice or is there any authority that requires that or should it be looked at as a as this is the indictment this is what the general charges are and that this is the superseding indictment and this is the general charges and this is how you compare yeah and it does get a little confusing trying to craft cross reference all these things i think the most helpful way to do it is to look at the new charges that is to say counts fourteen through twenty and with respect to each one look in the old charges for for a notice of what was what he was facing in the new charge so so when it when you're talking about the severity it doesn't really matter that more severe charges were on the table if those severe charges don't pertain to the same physical acts so it does get a little particular about how you match it up but i don't think it's necessary to match it we don't have to say that it's all eleven ongoing course of conduct that makes it to say and we've broken it down into there's new counsel penetration that track old counts of penetration and new  counts of masturbation that count old tracks so it's broke it's broken out by means of the sexual conduct i don't know how to answer your question yes generally thank you to either of my colleagues have a question based on questions based upon my knowing me ok well counsel miss panic mislead thank you very much for your presentations this morning we do appreciate that the thorough presentations we will take this matter under advisement a decision will be rendered in due course and mr clark if you would give us back out fifteen minutes we will