## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Mays , 2012 IL App (4th) 090840

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J UVON F . MAYS, Defe ndant-Appe llant.

District & N o. Four th District Docke t No. 4-09-0840

Filed Rehea ringdenied August 30, 2012

October 10, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where defenda nt was initially

charg ed with three counts of murde r, but he was convicted of home invasion and two counts of felony murder that

wer e filed sever al months afte r the initial charg es wer e filed, and the State subsequently abandone d the initial charg es, h i s convictions did not violate his rig ht to a speedy trial, since the later ch ar ges could not

rea sonably be considere d “new and additional” for purposes of a speedy

trial analy sis; howeve r, t h e cause was rema nded for a Krankel inquiry into defe ndant’s claim his counsel was ineffe ctive in prompting the State to file the additional cha

rg es.

Dec ision Under
Review Appea l f rom the Circuit Court of Champaign County
, No. 08-CF- 2293; the Hon. Thomas J. Difanis, J udg e, pre siding.

J udg ment Affir med as modified a

nd rema nded with direc tions.Counsel on

Appea l M i chael J

. Pelletier, Kar en Munoz, and Amber Gra y , all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J ulia Ri etz, State’s Attorney
, of Urba na (Patrick Delfino, Robert J

. Bide rman, and Aimee Sipes Johnson, a ll of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE APPL ETON delivere d the judgme nt of the court, with opinion.
J ustices McCullough a

nd Cook concurr ed in the judgme nt a nd opinion.

OP INION

¶ 1 In Dec ember 2008, the State charg ed defe ndant, J uvon F. May s, with three counts of first degree murder (720 I L CS 5/9-1(a) (1), (a) (2) (West 2008)) in the shoo ti n g d e ath of Corinthian “Shawn” Spinks. On August 31, 2009, on t h e d ay o f trial, the State filed three additional char g es: one for home invasion (720 I L CS 5/12-11(a) (3) (West 2008)) and tw o fo r fi rst degree felony murder (720 I L CS 5/9-1(a) (3) (West 2008)) relating to the same incident. The jury convicted defe ndant of the new charg es, as the State had abandone d the orig inal murder char g es. The tr ial court sente nced de fenda nt to 60 y ear s in prison. ¶ 2 Def

endant appea led his convictions, claiming the State violated his rig ht to a speedy trial by failing to bringhim to trial within 120 day s on the new and additional charg es–cha rg es which wer e subject to c ompulsory joinder. He asser ted his trial counsel was ineffe ctive for failing to move to dismiss the new charg es based on a speedy-trial violation. He also claimed his trial counsel was ineffe ctive for fo rw ar d i ng the prosec utor a letter with incriminating information without his permission and for demonstrating a misund e r s tanding of the theories of acc ountability and felony murder. He further claimed the trial court err ed in failing to conduct an adequa

te Krankel inquiry (see People v. Krankel
, 102 I ll. 2d 181 (1984)) into his ineffe ctive-a ssistance c laims. ¶ 3 Wit h reg ard to his sentenc ing judgme n t , d ef en d an t cl ai m ed the trial court err ed by considering improper fac tors in fashioning the sentenc e. And, he disputed the imposit ion of

cer tain fines and the amount of cr edit awa rded. ¶ 4 Initially
, we aff irmed his conviction on the speedy-trial issue and aff irmed his sentence but deter mined that the ineffe ctive-a ssistance-of -counse l claim would be best considere d in

a postconviction proce eding

. People v. Mays
, 2011 I L App (4th) 090840-U (filed November 7, 2011, and modified on denial of rehe aring on Dec ember 15, 2011; vacated May 9, 2012,
pursuan t t o I llinois Supreme Court supervisory order). The supreme court, pursuant to its supervisory authority
, direc ted t his court to vacate our judgme nt and a d dre ss the m erits of defe ndant’s claim or addre ss the issue of whether the trial court failed to conduct a Krankel

-2-inquiry

. See People v. Mays
, No. 113685 (I ll. Ma r. 28, 2012) (nonpre cede ntial supervisory order on denial of peti t i o n for leave to appea l). We have done so, without disturbing our previous decision on the speedy-trial and sentenc ing issues, and now aff irm as modified and

rema nd for further proce eding s consistent with Krankel in acc ordanc e with our decision below.

¶ 5 I . BA CKGROUND ¶ 6 On Decem b er 2 2
, 2008, the State charg ed defe ndant with three counts of first degree murder for the Dec em b er 20, 2008, shooting death of Corinthian “Shawn” Spinks. On Fe bruar y 5, 2009, the g rand jury issued superse ding indictments, alleg ing defe ndant, without justification and (1) with the intent to kill or do g reat bodily harm (720 I L CS 5/9-1(a) (1) (West 2008)) (count I ), (2) knowing that such acts could cause death (720 I L CS 5/9-1(a) (1) (West 2008)) (count I I ), and (3) knowing that such acts cre ated a strong probability of death

or great bodily harm (720 I L CS 5 / 9-1(a )(2) (West 2008)) (count I I I ), persona lly shot and killed Spinks

. ¶ 7 On Marc h 24, 2009, defe ndant’s public defe nder, Randall Rosenbaum, filed a motion to continue the trial “in the interests of justice.” On April 21, 2009, the State filed a motion to continue to secur e fore nsic test results befor e proce eding to trial. On May 19, 2009, the trial
court vacated the appointment of the public defe nder. Def endant’ s new attorney , G. Ronald Kesing er, filed an entry of appea ranc e and a motion to continue. Def endant’ s jury trial was

resc heduled to beg in on August 31, 2009. ¶ 8 On August 17, 2009, Kesing er filed another motion to continue, claiming (1 ) h e wa s involved in other litigation that compromised his ability to adequately prep ar e for defe ndant’s trial, and (2) he was in the proce ss of contac ting witnesses. The trial court denied counsel’s motion. ¶ 9 Included in the court file is a letter dated August 26, 2009 (filed August 31, 2009), fr om Kesing er to Duke Harri s , a Champaign County assistant State’s Attorney
, stating that he would be proce eding with a defe nse that the shooti n g o f S p inks was acc idental. Kesing er repor ted that defe ndant’s cousin, Br ian Shaw, was with defe ndant at the time of the incident and was the person wea

ring the camouf

lag e coat and “who had the pistol which discharg ed and killed Mr. Spinks.” Appar ently , defe ndant and Shaw were “try ing to g et [ defe ndant’s]
persona l proper

ty back as Br ian Shaw had lear ned earlier in the morning that Roge r Br own, and Spinks and another guy named ‘D u d e’ wer e the ones who burg larized [defendant’ s]
apar tment. T hey went in with Br own’s key and then kicked in the door to make it look like a for ced entry .” Defenda

nt and S haw wanted to confront Spinks about the burg lary . When Spinks opened the door and saw defe ndant and Shaw, he tried to close it, but defe ndant “tried
t o p u t h is arm throug h the door to g et in.” Acc ording to Kesing er, “the door hit the gun which Shaw had in his hand and it discharg ed.” In the letter, Kesing er encour ag ed Har ris to have Rantoul police office rs reinter view the witnesses. He also reque sted a g rant o f im mu n it y for a char g e of obstruction of justice fo r sever al named witnesses “in order to obtain the truth” fr om them at trial. ¶ 10 As a result of Kesing er’ s letter, o n Au gu s t 3 1
, 2 0 0 9, the State filed three additional

-3-char g es ag ainst defe ndant. The prosec utor informed the trial court that Kesing er’ s letter “wa s

tantamount to a confe s s i o n t o a fe l o n y murder,” and he “fe lt at that point in time it was appropr iate to add that char g e.” In count IV, the S t at e alleg ed defe ndant, without lawful justification, while committing or attempting to commit a forc ible felony
, home i n v as ion,
persona lly discharg ed a firea rm in Spinks’s direc tion, there by causing Spinks’s death. See 720 I L CS 5/9-1(a) (3) (West 2008). In count V, the State alleg ed defe ndant, or one for whose conduct he was leg ally responsible, while co m m i t ting or attempting to commit a forc ible felony
, home invasion, discharg ed a firea rm in Spinks’s direc tion, there by causing Spinks’s death. See 720 I L CS 5/9-1(a) (3) (West 2008). In count VI
, the State alleg ed d efe ndant committed a home invasion in that he enter ed Spinks’s home, located at 1404 Hobson Drive,
apar tment B, in R antoul, knowing that one or more persons wer e pre sent and while a rmed wit h a fi re arm , threa

tened to use imminent forc e ag ainst Spinks and his wife, in that defe ndant threa

tened Spinks and his wi fe wi t h the firea rm. See 720 I L CS 5/12-11(a) (3) (West 2008). ¶ 11 Def

endant’ s counsel filed an objection to the State’s motion to file additional charg es on the day schedule d for trial on the basis that he was ill-prepar ed to prese nt a defe nse to these

new charg es. Counsel did not reque st they be dismiss ed on speedy-trial grounds. Noting that the felony murder char g es wer e simply “diffe rent way s of charg ing the offe nse of first-degree murder,” the trial court allowed the State to file, and to proce ed to trial o n , t h e addit ional char g es and de nied Kesing er’ s motion t o withdraw a s counsel. ¶ 12 Def

endant’ s trial beg an on August 31, 2009, and continued over the course of five da y s. Since defe ndant does not challeng e the sufficie ncy of the evidenc e, only those f a c ts nece ssary to resolve the issues raised will be stated. Twanda Spinks testified first for the State. She said that, at approx imately

9:30 a.m. on Saturday

Dec ember

20, 2008, she, her

husband Shawn (her einaf ter ref err ed to as Spinks), and her five children wer e i n their apar tment at 1404 Hobson Drive. She hear d a knock on their door. She and S p i n k s had a rule that no one opened t h e d o o r but him. Twanda went to the door and asked who it was. She could not make out the response, so she got Spinks out of bed. She had looked out the pe ephole and

saw a man s tanding at t he door with his head down. Another ma n, wea ringa blac k leather coat, wa s standing a cross the ha llway

. ¶ 13 Spinks went to the door and asked who it was. Twanda could not hear t h e re s ponse. Spinks beg an turning the handle to open the door when a man forc ed his way into the
apar tment. S p i n ks strug g led to keep the man out. During the strug g le, the gun fired and a b u l l et hit Spinks. The man, wea ring a ski mask and a camouf lag e jacke t, enter ed t h e apar tment and forc ed Twanda into the kitchen at gunpoint. He said: “Give it to me.” Twanda h ad n o i d ea wh at he was talking about. She asked: “Give you what? ” She beg g ed him t o leave beca

use her kids wer e home. She said he paused, put the gun down to his side, and ran out of the apa

rtment. ¶ 14 Kathlee n Fa

ber, the apar

tment complex manag er, testified there wer e four apar tments on the first floor of their building. She lived next door to defe ndant, who lived acr oss from Spinks. Def

endant had lived in the complex for two months prior to the shooting. At the time of the incident, she hear d “a big boom.” She opened her apar tment door and saw defe ndant

run down the hallway

. He wa s we aring a camouf lag e jacke t and a black stocking cap, not

-4-pulled over his fac e. She went inside to g et her telephone and key s and then saw another man

exit Spinks’s apar

tment and enter defe ndant’s apar tment. The other man, whom Fa ber descr ibed as “ very

tall” with an Af

ro, wore a white “ hoodie.” ¶ 15 L at o n i a P er ry testified that she lived direc tly above Spinks. On the mornin g o f t h e incident, she left her apar

tment for work at approximately 9:30 a.m. She went down the stairs

an d saw a man in a camouf lag e coat and a ski mask “bammin and knockin” on Sp i n k s ’s door. S he did not see anyone else around. She heard someone insi d e t h e apar tment asking who was at the door. The man in the ski ma sk looked at Perry “re al like eerie” and told he r something was g oing to happen and she should not be in the are a. She proce eded to take her son to his baby sitter in the next bui lding. She we nt back to her a partment a

nd then hea

rd a loud “bam or shot” coming fr o m S p i nks’s apar tment. She saw the man in the camouf lag e coat walk ou t into the courtyard from their building and around the next building, while takingoff his mask. ¶ 16 Roge r Br own, a neighbor, first testified about his criminal history

. He said he had bee n convicted “for drug s” in 2001 and burg lary in 1997. He and his fianc ée lived at 1405 Hobson Drive, a nother buildingwithin the apartment complex, where he worke d as a ma intenance

man. On the morning of the incident, Br own was on his way to visit defe ndant. Twanda came out of her apar

tment and told Br own that Spinks had been shot. Br own enter ed S p inks’s
apar tment and saw Spinks lying on the floor. Br own left when the police arr ived. Br own saw defe ndant standing in the courtyard “with ever y body else,” but he could not rec all what defe ndant was wea

ring

. He denied telling the police that defe ndant was wea ring a white longsleeve d thermal shirt. ¶ 17 Dana L aidley
, secur ity supervisor at Walmart i n R an toul, testified that the police had
contac ted her afte r the incident, indicating that a sus pect had been in the store prior to the shooting. She sear ched her video surveillan ce re co rdi ng s and found a video of the “g entleman with the c oat that was in que stion” at reg ister 18 chec king out during the ear ly morning hours befor e the shooting. A photogr aph taken from the video depicted defe ndant
at the cash re g ister wea

ring the camouf

lag e coat and stocking cap that wer e found at the

scene

. ¶ 18 Severa l Rantoul police o ff i ce rs t es t i fi ed ab out their individual involvement in the shooting investigation. One office r found a camouf lag e coat in a storag e closet on the second floor of defe ndant’s apar

tment building. Severa l witnesses had repor t ed seeing defe ndant

wea ring the coat on the morning of the incident. Inside the pockets of the coat, office rs found (1) a bank deposit slip bearing de fenda nt’s name, ( 2) an e nvelope with a house key inside, with the name “May s” and “1404 Hobson Drive, Apar tment D,” written on the outside, and (3) a pair o f l at ex gl oves. Another office r found two handguns, two stocking caps, and a white g love lying on the g round outside of one of the apar t m en t buildings within the complex. ¶ 19 Michae l Ky

rouac of the I llinois State Police testified t hat he investigated the shooting

. He n o t iced a bullet hole in Spinks’s apar tment door, appar ently the entry hole, which h ad
soot around it. T h i s i n d i cated that the barrel of the gun was fired in close prox imity to the door. Further, acc ording to Ky rouac , t h e m an n er in which the soot was distributed around

-5-the hole indicated that the shooting did not occur as a result of the door hitting the gun

causingit to dis char g e. On c ross-examination, Ky rouac testified that no l atent fing erpr ints

wer e found on the guns. ¶ 20 Matthew Br oss, a Rantoul police office r, testified t h at o n De ce m b er 2 0
, 2 0 0 8, at approximately 2:30 a.m., he was dispatched to defe ndant’s apar tment for a repor

ted burg lary

. (These events took place befor e the shooting, which occur red later that same morning .) When Br oss arr ived, he met with d efe ndant in the prese nce of three fema les. Def endant
repor ted that the burg lary to his apar tment appar ently occur

red betwee n 3 p.m. and 1:30 a.m. Br oss notice d a footprint on the front door of def endant’ s apar

tment. Defe ndant believe d a

m aintenanc e man, Br own, may have been responsible beca use he had seen defe n d an t bring ing the i t em s t h at wer e taken into his apar tment. Br own was working at defe ndant’s neighbor’s apar

tment at the time. Def

endant re p o rt ed t hat two televisions, an Xbox g ame console, a video g ame, a

Dell computer , and his children’ s Christmas gifts we re taken. ¶ 21 Evere tt Krue g er, a parole ag ent with the I llinois Depa rtment of Correc tions, testified that he supervised defe ndant’s parole beg inning in October 2008. Def endant had been compliant with the terms of his parole

. He maintained contac t wi t h Kru eger and had secur ed employ ment. Def

endant wore an elec tronic deten t i o n m o nitoring sy stem on his ankle, so Krue g er w as able to discern that defe ndant had lef t his apartment at 9:31 a.m. on Saturda y Dec ember 20, 2008. After that, Krue g er lost trac k of defe ndant until J anuar y 8, 2009, when defe ndant was a

rre sted in Nashville, Tenne ssee. ¶ 22 Severa l fore nsic scientists testified reg arding various testing he or she perf ormed on the items in evidenc e. The extent of the incriminating evidenc e reve aled that defe ndant could not be excluded as one of three contributors to the deoxy ribonucleic acid (DNA ) found on both stocking caps, one of two contributors to the DNA found on the white g love, and one of two contributors t o the DNA found on a pair of t enni s s h o es found at defendant’s residenc e in Tenne ssee. The tennis shoes matched the impression left in the kitchen of the Spinks’s
apar tment. There had bee n no latent fing erpr ints found on either gun. ¶ 23 L atoya Jones testified for the de fense . She said she g ave de fenda nt and S halita Cooper

a ride home from work on Dec ember 20, 2008, when their shift ended at 12:15 a.m. They made a fe w s t o p s , one of which was Walmart. J ones identified herse lf, Cooper, and defe ndant in the photogr aph from the Walmart surveillance video. When they arr ived at defe ndant’s apartment, t hey noticed his d o o r had been kicked in. Def endant said someone had stolen two televisions, a computer, and his children’ s toy s. Def endant called the police and the three “ ‘starte d drinkin’ a littl e bit.” J ones left at approximately 2:30 a.m. As she was leaving
, a g entleman she d i d n o t kn ow was arriving at defe ndant’s apar tment. J ones and defe ndant both wer e schedule d to work Saturday afte rnoon at 2:30 p.m. J ones asked if defe ndant neede d a ride, but he said he had one arr ang ed. J ones did not see defe ndant ag ain. ¶ 24 Cooper testified co n s i s t en t l y wi t h J o n es ’s t es t imony
, except Cooper said it was defe ndant’s cousin who had arr ived as J ones was leaving

. She said he did not stay very long. Af t er he left, it was just Cooper and defe ndant. They wer e still drinking

. Cooper lef t at approximately 4 a.m. She went to her baby sitter’s house in the same apar tment complex. At 7 a.m., she took her children to her s i s t er ’s house. At 10 a.m., Cooper went back to the

-6-apar tment complex b ec ause she had left her purse at her baby sitter’s house. She saw defe ndant at his aunt’s house, which was “a way s” from the apar tment complex. He asked for a ride to Champaign and Cooper oblig ed. She did not see him ag ain. ¶ 25 Def

endant testified on his own behalf

. He said he was rele ased on parole from the I llinois Depa rtment of Correc tions in October 2008. For the first two months, he was compliant with his parole conditions. He g ot a job at Con-Air and the apar tment on Hobson Drive. He said he had five children and was “ma i n l y s p en d i n’ all [hi s] chec ks on [hi s] kids” for the upcoming Christmas holiday

. After he, Cooper, and J ones g ot off wo rk at 12:15 a.m. on Dec em b er 2 0
, 2008, Cooper and J ones agree d to g ive him a ride home. He testified consistently

with Cooper and Jones reg ardingwhat they did after work. ¶ 26 Howeve r, defe ndant said at approximately 2 a.m., he knocked on Spinks’s door. Spinks opened the door and asked defe ndant to come into the kitchen. When they g ot in the kitchen, defe ndant asked Spinks if he had seen anyone enter hi s apar tment that day

. Spinks said he had not, but he would ask hi s wife the next day

. Def endant le ft

. He then went to Kathlee n Fa ber’ s apar tment to a sk her the same question. She had not seen anyone either. Def endant said: “And then she proce eded to ask me why I haven’ t been callin’ her and how could I just have se x with he r and not ta lk to her no more.” Fa ber then told de fenda

nt to call the police and she w ould try

to locate the owners of

the apa rtment for him. ¶ 27 Def

endant went back to his apar tment and called the police. When they arr ived, he g ave them the nec essar

y information. In the meantime, his c ousin, B rian Shaw, a rrived a nd told him that he had just be en involved in an “altercation with some body who was tryin’ to se ll [hi s] belong ings

. ” De fenda nt had told the police that he believed Br own had stolen his belong ings beca

use “he’ s known for brea

kin’ in people’ s place s.” Def endant claimed Br own had been to his “house to fix stuff” and knew about “the valuable objects” defe ndant had in his apar tment and knew wha t t i me defendant left for work. Def endant said Shaw t old him that “B ro wn h ad somethin’ to do with it” and that the items wer e in Spinks’s apar tment. Def endant said h e t old Shaw that he had just been over there and he did not see any thing. Def endant sa id Shaw and Cooper both lef t his apartment at a

pproxi mately

4 a.m. ¶ 28 Def

endant testified that Shaw returne d at 6 a.m. and said he had “found out ever y thing.” He had b ro ught defe ndant a .38 caliber handgun for protec tion. Def endant said he did not want the gun beca

use having it would be a violation of his parol e. T h ey talked for approximately three hours. S haw asked i f th ey s h o uld g o talk to Br own about defe ndant’s items. Def

endant said: “[N]o ’ca

use i f I g o over there we g onna end up fig htin’ beca use I know he took my stuff.” Shaw sug g ested that they g o acr oss the hall and ask Spinks whether Br own was involved. The y decide d to try

. ¶ 29 Def

endant said he knocked on Spinks’s door and a fema le asked who it was. Shaw told her sever al times it was just “somebody .” He then g ot ag g ravated an d p u l l ed h is gun out. Spinks came to the door and asked who it was. Def endant said he responde d: “I ’m like ‘this J uvon, t h e guy from across the hall.’ ” S pinks unlocked the door and opened it a li ttle and Shaw put his foot by the door and started pushing t h e d o o r o pen. Spinks pushed the door back. Shaw moved his foot and the door sl ammed on his arm. Defenda nt testified: “When the door slammed to his arm[,] the gun j ust went off. And when the gun went off [,] I was

-7-just stuck there fr oze. Ifroze.”

¶ 30 Def

endant said Shaw ran back to defe ndant’s apar tment. Def

endant saw Fa

ber come out of her apar

tment as he ran out the back door of the building. Def endant said he did not know
anyone had been shot. He said he ran into Br own on Maplewood Drive and Br own asked defe ndant what had happene d. Def endant said he told him Shaw had done something “stupid.” Br own took defe ndant to his aunt’s house, but sh e was not home. As defe ndant beg an to reenter B rown’s c ar, he saw Cooper and Jones arrive. T hey

asked de fenda

nt if he neede d a ride. He asked them to take him to Champaig n and they agree d. When he g ot in the vehicle, Cooper asked defe ndant about what h a d o c c u r r ed at defe ndant’s building. Def endant told her he did not know. ¶ 31 Def

endant sa id he was wrong for not telling the police what had ha ppened. H e said: “I understand that I ’m just as wrong as the individual who pulled the tr i gger, and I ’m not denyin’ the fac t of that. You know, I ’m a man. I sit here today and I understand that my actions wasn’t rig ht, lyin’, dece itful.” Def endant said that, throughout the day on Saturday
, he had rec eived numerous t h re atening messag es on his cellular telephone. He telephoned Shaw, who to l d h i m that someone had just been shooting at him. Shaw told defe ndant to leave Rantoul. Def

endant’ s friend g ave him a ride t o the bus station and he went to his brother’ s house in Tenne ssee. ¶ 32 On cr oss-examination, the pr osecutor a sked def endant why

he would g et into Brown’s vehicle when he believed it was Br own who had broken in to his apar tment. Def

endant explained that the two had discussed it and Br own told defe ndant that he was on his way over to de fenda

nt’s house to expl ain that he ha d not stolen his it ems. Br own said the police had just questioned him about it. Def endant said he did not believe Br own’s story

. He said he still believ es Br own was responsible. When asked if defe ndant still believed Spinks was responsible, defe ndant said: “Well, I don’t know. I mean, due to the sever ity of how–it’s hard to look at a per son who dec ease d rig ht now and think neg ative of ’ em.” De fenda nt rested. ¶ 33 In rebuttal, the State called Serg ean t Be ac h

. He t es t i fi ed that no one else had bee n char g ed in connec tion with Spinks’s death. When Be ach spoke with defe ndant in Tenne ssee afte r his arr est, defe ndant did not mention Br ian Shaw or say the shooting was an acc ident. ¶ 34 The trial court advised the jury that defe ndant had been convicted of ag g ravated battery and unlawful possession of contra band in a penal institution. The court admonished the jury that those convictions should b e consi dere d only as to defe ndant’s cre dibilit y and not as evidenc e of guilt. The court denied defe ndant’s motion for a direc ted verdic t and proce eded
to the jury -instruction confe renc e. During this c onfer ence , the prosec utor advised the court that the State was proce eding only on the newly filed charg es of felon y m u rd er an d home invasion and aba

ndoning the orig inal charg es of f irst degree murder. ¶ 35 After closing arguments, the jury retire d to deliberate. There afte r, the jury returne d guilty verdic ts on the char g es of home invasion and felony murder on the theory of acc ountability

. The jury found the State had failed to prove that defe ndant persona lly discharg ed the firea rm killing Spinks. ¶ 36 On September 29, 2009, Kesing er filed a posttrial motion claiming the trial court e rre d by (1) allowing the State to file the home-invasion charg e on the day of trial, and (2) denying

-8-counsel’s motion to withdraw on the day of trial. There afte r, defe ndant filed a pro se motion

for a new tria l alleg ing he rec eived inef fec tive assistance of counse l. ¶ 37 On October 26, 2009, the trial court considere d counsel’s posttrial motion and denied the

same. The court did not address defe ndant’s pro se motion. The court proce eded to sentenc ing. Neither party prese nted testimonial evi d en ce. After considering counsels’

rec ommendations, the prese ntence investigation repo rt , the victim-impact statement, defe ndant’s statement in allocution, the applicable fac tors of ag g ravation and mitigation, the
court ent er ed a judgme nt of conviction on first degree felony murder only and sentenc ed defe ndant to 60 y ear s in prison. This appeal followe d.

¶ 38 I I . ANALYSI S ¶ 39 A. Speedy Trial ¶ 40 Def

endant claims his co n v i ct i o n s must be vacated beca use the State failed to try him within 120 day s of being taken into custody in violation of h i s ri gh t t o a speedy trial. On Dec ember 22, 2008, the State filed three counts of first degree murder against defe ndant. These counts alleg ed intentional murder resulting from defe ndant persona lly firing a wea pon at Spinks. See 720 I L CS 5/9-1(a) (1), (a) (2) (West 2008). Def endant was arr ested and taken into c ustody on J anuar

y 10, 2009, the day his spe edy -trial term beg an to run. On the day of trial, August 31, 2009, day 233, the State filed thr ee n ew charg es ag ainst defe ndant–two
counts of felony m urder (720 I L CS 5/9-1(a) (3) (West 2008)), one alleg ing defe ndant
persona lly fired the wea

pon while committing a forc ible felony and one alleg ing defe ndant’s

acc ount ab i l i t y for firing the wea pon while committing a forc ible felony
, and one count of home invasion (720 I L CS 5/9-1(a) (3) ( We s t 2 0 0 8 ) )

. The State abandone d the orig inal murder char g es and the jury

found def

endant guilty

of the ne wly

filed cha rg es. ¶ 41 Def

endant argues that beca

use the newly filed charg es wer e based on the same c onduct
as t he original charg es, compulsory joinder p ri n ciples applied, which required the State to bring defe ndant to trial by May 11, 2009, 120 day s fr o m J an uary 10, 2009. Although defe ndant did not go to tria l within 120 day s from beingtaken into custody on the orig inal char g es, he claims the delay s attributed to him related to those charg es cannot be attributed to him on the new and a dditional charg es. ¶ 42 Def

endant raises a speedy-trial issue for the first time in this appeal

. He ex cu s es hi s proce dural defa

ult, claiming the issue should be revie wed (1) under the plain-er ror doctrine

or (2) beca

use his trial counsel was ineffe ctive for failing to raise the issue previously

. Either
way , we must first deter

mine whether defe ndant’s right t o a speedy trial was viol ated. See In re Samantha V.
, 234 I ll. 2d 359, 36 8 -69 (2009) (in a plain-error analy sis, the reviewing
court must first deter

mine whether any err or occur red) ; People v. Phipps
, 238 I ll. 2d 54, 65 (2010) (on an ineffe ctive-a ssistance-of -counse l claim, th e re v i ewing court must first deter mine whether there was a speedy-trial violation befor e it can deter mine wh et h er counsel’s pe rfor

mance was de ficient or whether defe ndant suffe red pr ejudice)

. ¶ 43 A defe ndant has a constitutional rig ht as well as a statutory rig ht to a speedy trial. See U.S. Const., amends. VI
, XIV; I ll. Const. 1970, art. I
, § 8; 725 I L CS 5/103-5(a) (West 2008). In this appea l, defe n d an t does not raise a constitutional issue. Rather, he contends his

-9-statutory ri gh t to a speedy trial was violated. Section 103-5(a ) of the Code of Criminal

Procedur e of 1963 (725 I L CS 5/103-5(a) (West 2008)) provides that a defe ndant shall be tried by a court of competent j u ri s d i ct i o n within 120 day s from the date he was taken into custody

. Even if a delay is attributable to a defe ndant on the orig inal charg es, a delay is not alway s attributable to a de fenda nt on subsequently

filed cha rg es. Phipps , 238 I ll. 2d at 66. ¶ 44 Our supre me cour t refe rre d to the followingrule in these c ircumstance s: “ ‘Where new and additional char ges ar i s e from the same fac ts as did the orig inal ch ar ges and the State had knowledg e of these fac ts at the commence ment of the
prosec ution, the time within which trial is to beg in on the new and additional char g es is subject to the same s t atutory limit ation that is applied to the orig inal char g es. Continuances obtained in connec t i o n wi t h t he trial of the orig inal charg es cannot be attributed to defe ndants with respe ct to the new and additional charg es beca use these new and additional char g es wer e not befor e the court whe n t h o s e continuance s wer e obtained.’ ” Phipps
, 238 I ll. 2d at 66 (quoting People v. W illiams
, 94 I l l. App. 3d 241, 248-49 (1981) ). ¶ 45 Initially , we note the State does not contend it was not awa re of the fa cts g iving r ise to the subsequent char g es at t h e start of the prosec ution. The purpose of what has become known as the W

illiams ru l e i s t o avoid a “ ‘trial by ambush.’ ” Phipps
, 238 I ll. 2d at 67 (quoting P eo

p l e v. W illiams
, 204 I ll. 2d 191, 207 (2003))

. The question for a speedy-trial analy sis is whether defe ndant had adequate notice of the subsequent charg es to allow him to prepa re and prese nt a defe nse. “If t he orig inal charg ing instrument g ives a defe ndant adequate notice of the subsequent charg es, the ability to prepa re for trial on those char g es is
not hindere d in any way .” Phipps
, 238 I ll. 2d at 67. In other words, for speedy-trial purposes, the delay s attributable to defe ndant on the orig inal charg es could be attributable to defe ndant

on the newly filed char g es only if the charg es wer e essentially the same. See Phipps
, 238 I ll. 2d at 70 (the defe ndant could not have been surprised by the subsequent charg es beca use they

wer e essentially the same as the orig inal charg es; there wa s n o d an ger of “ ‘trial by ambush’ ”)

. ¶ 46 Neve rtheless, the rule applies only when the orig inal and newly filed charg es are subject
to compu l s ory joinder. Phipps
, 238 I ll. 2d at 67. Def endant claims the felony-murder and home-invasion charg es are subject to compulsory joinder. The State disag ree s, claiming the felony-murder char g es simply alleg e another theory of first degree murder, the crime char g ed in the or i gi nal i ndictments. The S tate argues t he new charg es “merely informed defenda nt of another theory of first degree murder the State believed the evidenc e would support.” As for the home-invasion char g e, the State claims the new charg e “wa s not ba sed on the same
act that formed the basis for the Dec ember 2008 charg es, and there fore
, the compulsory joinder statute did not apply .” ¶ 47 We revie w de novo the leg al question of whether the charg es wer e subject to c ompulsory joinder. Phipps
, 238 I ll. 2d at 67. We beg in by examining the elements of eac h char g ed offe nse. Orig i n ally
, the State charg ed defe ndant with three counts of first degree murder. Counts I and I I alleg ed defe ndant either intended to kill o r do g reat bodily harm and defe ndant knew that his act of persona lly discharg ing a firea rm in the d i re ct ion of Spinks

-10-would cause Spinks ’s d ea t h

. See 720 I L CS 5/9-1(a) (1) (West 2008). Count I I I alleg ed

defe n d an t knew that his act of persona lly discharg ing a firea rm in the direc tion of Spinks

cre ated a strong probability of death or g reat bodily harm. See 720 I L CS 5/9-1(a)(2) (West 2008). ¶ 48 In the August 2009 information, the State charg ed defe ndant with two additional counts of first degree murder. Both count I V an d co u nt V alleg ed defe ndant killed Spinks while committing or attempting to commit the forc ible felony of home invasion. See 720 I L CS 5/9- 1(a) (3) (West 2008). Count IV alleg ed defe ndant persona lly discharg ed a firea rm which killed Spinks. Count V alleg ed defe ndant, or one for wh o s e conduct he was leg ally responsible, discha

rg ed a f irea rm which killed Spinks. ¶ 49 In the orig inal char g ing instruments, the State did not charg e defe ndant with any conduct related to a home invasion, nor was it appar ent that the State had considere d the possibili ty that another person had actua lly fired the wea pon that killed Spinks. As we stated above, the critica l point in a speedy-trial analy sis is whether the orig inal charg es g ave defe ndant adequate notice to pre pare a def ense to the subse quent cha rg es. Phipps , 238 I ll. 2d at 69. ¶ 50 Def

en d an t ’s ar gument that the State violated his rig ht to a speedy trial fails for two

rea sons. First, the notion that defe ndant was guilty of felony murder (as opposed to the murder counts orig inally char g ed) and home invasion arose from the defe ndant’s own counsel’s communication with the State. I f felony m u rd er based on a home invasion was Kesing er’ s theory of the case , as he so advised Har ris in writing
, we cannot presume he was later surprised when the State agree d with him and filed the addit i o n al murder and homeinvasion char g es. ¶ 51 Second, it is clea r that defe ndant, who was orig inally charg ed with the act of murder, w as not prejudice d by a subsequent conviction for felony murder. As Justice Miller noted in People v . Maxwell , 148 I ll. 2d 116, 137 (1992):
“I llinois law re cognizes only a sing le offe nse of murder, which ma y be committed in a varie ty of wa y s. J ust as the method of c ommitt ing mur der is not integ ral to the offe nse and there fore need not be specifie d in the charg ing instrument [citation] ***, the prec ise statutory theory of th e offe nse of murder is not a matter that must be specific ally alleg ed.” ¶ 52 As in Maxwell
, defe ndant here had timely notice of the felony-murder charg e and cannot

rea sonably argue surprise when his own lawyer sug g ested it. Wh ether Kesing er’ s conduct of writingthe letter to Ha rris constituted ineff

ective a ssistance is discussed be low. ¶ 53 For the purposes of this appea l, we conclude that the newly fi l ed fe l o n y-murder and home-invasion charg es did not violate defe ndant’s rig ht to a speedy trial beca use, under the fac ts of this case , those char g es could not rea sonably be considere d “new and additional” for the purposes of

a spee dy -trial ana ly sis.

¶ 54 B. Ineff ective A ssistance of Counsel ¶ 55 Def

endant further claims his trial counsel rende red ineffe ctive assistance by violating the attorney-client privileg e and prompting the State to file the additional charg es for which he

-11-was convicted. In a pro se posttrial motion, defe ndant asser ted his claim that his trial counsel

was ineffe ctive. Howeve r, the trial court did not addre ss def en d an t ’s motion. Def

endant
argues the court violated Krankel by failing to make an adequate preliminary inquiry into his
pro se posttrial claims. In our de n o vo re v i ew (see People v. Moore
, 207 I ll. 2d 68, 75 (2003))
, we agree with defe ndant and rema nd this case with direc tions to make an adequate inquiry into those claims. ¶ 56 We acknow ledg e that a trial court does not have to appoint a new defe nse counsel simply beca use a d ef

endant alleg es, afte r trial, that the curr ent defe nse counsel has rende red ineffe ctive assistance

. Moore
, 207 I ll. 2d at 77. Instead, acc ording to Krankel and its prog eny , the court “should first examine the fac tu al b as i s” of the defe ndant’s claims of ineffe ctive assistance
, to asce rtain whether there wa s a “possible neg lect of the case.” Moore
, 207 I ll. 2d at 77-78. I f there was a “possible neg lect of the case ,” the court should appoint new counsel to re prese nt the defe ndant in a posttrial hea ringon the pro seclaims of inef fec tive assistance

. Moore
, 207 I ll. 2d at 78. I f, on the other hand, af ter “ adequate inquiry” into the “fa ctual basis” of the claims, the court “dete rmines that the claim[s] lack[ ] merit or perta in[ ] only t o m at ters of trial strategy ,” the court may deny the pro se motion for a new trial, without appointing new

counsel. Moore , 207 I ll. 2d at 77-78. ¶ 57 As the supreme court has explained, the trial court may consult sever al differ ent source s of information when perf

orming its preliminary inquiry into the pro se claims of ineffe ctive assistance . The supre me cour t has said:
“Dur ing this evaluation, s o me intercha ng e betwee n the trial court and trial counsel

r e g a r d in g th e f a c ts and circ umstances surrounding the alleg edly in e f f e c ti v e r ep r e s e nta

ti o n is permissible and usually nece ssary in assessing what further action, if any , is war rante d

on a defe ndant’s claim. Trial counsel may simply answe r questions and explain the fac ts and circ umstances surrounding the defe ndant’s alleg ations. [C itat i o n s.] A brief discussion betwee n the trial court and the defe ndant may be sufficie nt. [C itations.] Also, the trial court can base its evaluation of the defe ndant’s pro se alleg ations of ineffe ctive assistance on its knowledg e of defe nse counsel’s perf ormanc e at trial and t h e insufficienc y

of the de fenda

nt’s alleg ations on their fa ce.” Moore , 207 I ll. 2d at 78-79. Thus, the court may talk with trial counsel. The court may talk with the defe ndant. The court may rely on its own previous observations of trial counsel’s perf orm an ce i n the case

. The
court may , of course , rely on its own leg al knowledg e of what does and does not c onstitut e ineffe ctive assistance

. The supreme court does not say when the trial court should talk with trial counsel and when the court should talk with the defe ndant. That depends on the claims and the c ircumstance s. ¶ 58 The trial court must do whateve r common sense sug g ests is nece s s ar y t o an ad eq uate investigation. Essentially
, the investigation has two steps, in this order : (1) understanding the defe ndant’s claims and (2) evaluating them for potential merit. Until the court takes the first step, the court is in no position to attempt the second step. Certain of the defe ndant’s claims might be vague, conclusory
, and enig matic. In the wording of the claims, it might be unclea r exactly what the defe ndant means. Probably there is no better person to ask than the defe ndant. L ikewise, if the fac tual basis of a claim i s u n cl ea r– if the defe ndant could be

-12-relying on f acts that a re outside the r ecor d–the def endant a g ain is probably

the best person from whom to seek clar ification. See People v . Munson , 171 I ll. 2d 158, 201 (1996) (“ The [t rial] court made ever

y eff ort to asce rtain the nature and substan ce of defe ndant’s ineffe ctiveness claim.”) ; People v. Byron
, 164 I ll. 2d 279, 304-05 (1995) (noting that the trial court he ard the defe ndant desc ribe in deta il the fac tual basis of the c laim). ¶ 59 In his pro se motion for a new trial, defe ndant asser ted that his trial counsel had re ndere d ineffe ctive as s i s t an ce by
, inter alia
, bring ing new information to the State’s attention, information which defe ndant deeme d confide ntial, but the State deeme d sufficie nt to support what it considere d new and additional charges

. Did the i nformation in Kesing er’ s letter to Har ris prec lude defe ndant’s ability to prese nt the jury with an instru cti on on involuntary manslaughter? Did the letter admit defe ndant committed felony murder? Why did Kesing er send Har ris the letter? Would the result of the proce eding s have been differ ent had Kesing er not sent the l etter to Harri s ? T h e trial court needs t o investigate t he claims by inquiring of defe ndant and c ounsel. ¶ 60 As stated, the law mandates the trial cour t to conduct some ty

pe of preliminary inquiry into the underlying fac tual basis of a defe ndant’s pro se posttrial cl aim of ineffe ctive assistance of counsel. Moore
, 207 I ll. 2d at 79. Be cause no such investigation occur red in this

case , we must rema

nd the cause to th e trial court for a preliminary investigation into defe ndant’s claims to deter m ine whether the appointment of new counsel to eff ectively
prese nt defe ndant’s cla ims is appropriate a nd nece ssary . See Moore , 207 I ll. 2d at 81.

¶ 61 C. SentencingI ssues ¶ 62 1. Consideration of Sentenc ing Factors ¶ 63 As for the all ege d sentenc ing err or, we find as follows. On October 26, 2009, the trial

co u rt called the matter for sentenc ing. First, the court indicated it had consid er ed t h e prese ntence investigation r eport a nd the victim-impact statements. Neither party prese nted testimonial evidenc e and, instead, proce eded with th ei r re s p ective rec ommendations as to sentenc ing. The State reco m m en d ed the maxi mum sentenc e of 60 y ear s, while defe ndant

rec ommended a sentenc e “close r to the minimum ” of 20 y ear s. Def endant made a statement in allocution, and the victim’s aunt re ad Twa nda’s victim-impac t statement in open cour t. ¶ 64 The trial court in d i ca t ed i t co n s i d er ed all rele vant matters, noting there wer e no applicable statutory mitigating fac tors. Howeve r, the court found defe ndant’s “r el ati vely
young ” ag e of 28 wa s a nonstatutory fac tor in miti g ation, as we ll as the fac t that de fenda nt had shown a few months of compliance with his latest parole terms

. For fac tors in
ag g ravation, the court relied on the following : (1) defe ndant’s criminal history (this was his six th conviction); and (2) his juvenile rec ord (he was “ literally raised by the juvenile cour

t sy stem”). The court noted that it considere d deter renc e as an important fac tor in fashioning

an appropr iate sentenc e. The court wanted others to consider the ramifications of committing

a crime with another person, as well as the ramifications of committing a crime involving a firea rm. The c ourt stated:
“B ut g iv en this defe ndant’s prior criminal history
, g iven the fac t that he has been involved in criminal activity for the vast majority of his both young life and his adult life,

-13-g iven the fac t that he decide d to arm himself with a wea pon, whether or not he pulled the trig g er, and decide d to pound on som eo n e’ s d oor and try to forc e entry , this is a crime
t h at I b elieve is deter

rable

. This is an offe nse that can be deter red. Other individual[ s] have to unde rstand this over a nd over a g ain.” ¶ 65 The trial court enter ed a judgme nt only on count IV, a first-degree -fe lony -murder count, declining to enter a jud gm en t o n the rema ining counts. (The trial court err ed in enter ing a judgme nt on count IV, as that was not the count upon which the jury convicted defe ndant of felony murder. Instead, the court sh o u l d have enter ed judgme nt on count V, the felony

murder char g e alleging that defe ndant or “one for whose conduct he is l ega lly responsible *** dischar ged a firea

rm,” killing Spinks. The State conce des the err or and we acc ept the State’s conc ession. We r emand the case with dir ections to amend the se ntencing judgme nt to r efle ct that defe ndant was sentenc ed on count V only .) The court sentenc ed defe ndant to 60 y ear s in prison. Def

endant did not raise in a postsentencing motion the issue he raises now

on appea l. Howeve r, he asks this court to revie w his claim under the plain-er ror doctrine. The first step in a plain-error analy sis is to deter mine whether any err or occurre d at all. People v. Thompson , 238 I ll. 2d 598, 613 (2010). ¶ 66 Def

endant cl aim s the trial court relied upon the fac ts that defe ndant was arme d with a

wea pon and used forc e to g ain entry as fac tors in ag g ravation–factors that are inhere nt in the underlying felony of hom e invasion. See 720 I L CS 5/12-11(a) (3) (West 2 0 0 8 ). Gene rally
, a trial court’s sentenc ing decisions are entitled to g reat defe renc e and will not be altere d on appea l absent an abuse of discretion. Peopl e v. Jack son , 375 I ll. App. 3d 796, 800 (2007). “A sentence which falls within the statutory rang e is not an abuse of di scre tion unless it is manifestly disproportionate to the nature of the off ense.” Jack

son , 375 I ll. App. 3d at 800. Although the maxi mum sentenc e was imposed, the trial court still sentenc ed defe ndant within the permissible statutory rang e of 20 to 60 year s. ¶ 67 Ho wever, it is err or for the trial court to consider as an ag g ravating fac tor an inhe re n t element of the offe nse. People v. Carter
, 272 I ll. App. 3d 809, 813 (1995). That is, a single fac tor cannot be used both as an element of the offe nse and as a basis for imposing a harshe r sentenc e than would have been imposed without it. People v. Phelps
, 211 I ll. 2d 1, 11-12 (2004). In this c ase, based on the totality of the court’s comments at sentenc ing, we cannot deter mine that the court imposed a harshe r sentenc e upon defe ndant based on the fac ts that he was arme d with a firea rm and used forc e to enter Spinks’s apar tment. Instead, it appea

rs the court imposed the maxi mum se ntence , in pa rt, beca use the court wanted to deter others from committing a

simil ar c rime. I

n fac t, the court spec ifically stated such. ¶ 68 The trial court responde d to defe ndant’s statement in allocution in which he insisted he did not intend to harm anyone and was not “the responsible shooter,” y et he was found guilty of first degree murder. Def endant said he saw “the gun g o off,” but he “didn’t pull no trig g er

on no man”; “didn’t have no gun pointed at a man”; and “neve r went in the Spinks’[ s] home.” In ref

ere ncing the elements of home invasion during its pronounce ment of sentenc e, the court was attempting to explain to defe ndant that he was being sentenc ed on a first degree murder offe nse under a theory of felony murder. The mention of the elements was nece ssary

as part of this explanation and can be char acte rized as nothing more. We find the court based its sentenc e on appropr iate fac tors only and that g iven the totality of circ umstances, the 60-

-14-y ear sentenc e imposed wa s rea sonable.

¶ 69 2. Monetary Credit ¶ 70 Def

endant insists his sentenc ing judgme nt should be amende d to ref lect the appr opriate

cre dit and a reduc tion of his Violent Crime Victims Assistance Fund fine from $25 to $4. The State c oncede s the sentenc ing- judgme nt error s and we acc ept the State’s c oncession. ¶ 71 First, the trial court awa rded defe ndant cr edit for 290 da y s spent in pr etrial custody

. At the rate of $5 per day
, defe ndant is entitled to monetary cre dit for those 290 day s for available cre dit of $1,450. This cre dit should be applied to the fines imposed upon defe ndant. Second, beca

use the court imposed more than one fine upon defe ndant, pursuant to section 10(b) of the Violent Crime Victims Assistance Act (725 I L CS 240/10(b) (West 2008)), the
amount of the fine imposed pursuant to this act should have been $4, rathe r than $25. We there fore rema

nd this case with dire ctions to amend the sente ncingjudgme nt acc ording ly

.

¶ 72 I I I . CONCLUSI ON ¶ 73 For the fore g oing rea sons, we aff irm defe ndant’s convictions as modified: (1) we a ffirm

on the s peedy-trial is sue; (2) we remand with d i re ct i o n s t o conduct a Krankel inquiry into defe ndant’s ineffe ctive-a ssistance-of -counse l c laims; and (3) we rema nd with direc tions to amend the sentenc ing judgme nt to ref lect that (a) defe ndant was sentenc ed on count V, not

co u n t IV; (b) defe ndant is entitled to $5-per -day cre dit for the 290 day s spent in pretri al custody for a total of up to $1,450 cre dit applied toward his fines; and (c) the Violent Crime Victims Assistance Fund fine should be re duced from $25 to $4. As part of our j udg ment,

we a war d the State its $50 statutory assessment ag ainst defe ndant as c osts of this appeal.

¶ 74 Affir

med as modified a

nd rema nded with direc tions.

-15-