ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Shipp, 2011 IL App (2d) 100197

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

PHILLIP M. SHIPP, Defendant-Appellant.

 District & No. Second District

Docket No. 2-10-0197

Filed October 5, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The State’s amendment of an information charging defendant with

unlawful possession of cocaine with intent to deliver under section

407(b)(2) of the Controlled Substances Act to charge unlawful possession

of cocaine with intent to deliver under section 407(b)(1) of the Act, a

Class X felony, was a formal change arising from a miswriting, not a

material change, defendant’s speedy trial right was not implicated, and

his counsel was not ineffective in failing to bring a motion to discharge,

since the facts never changed; therefore, defendant’s conviction and

sentence were affirmed.

Decision Under 

Review

Appeal from the Circuit Court of Stephenson County, No. 07-CF-94; the

Hon. Michael P. Bald, Judge, presiding

Judgment Affirmed.
Counsel on

Appeal

Thomas A. Lilien and Mark G. Levine, both of State Appellate

Defender’s Office, of Elgin, for appellant.

John H. Vogt, State’s Attorney, of Freeport (Lawrence M. Bauer and

BarryW. Jacobs, both of State’s Attorneys Appellate Prosecutor’s Office,

of counsel), for the People.

Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Hudson concurred in the

judgment and opinion.

OPINION

¶ 1 Defendant, Phillip M. Shipp, appeals from his conviction of possession of more than 1

gram but less than 15 grams of cocaine with intent to deliver within 1,000 feet of a church

(720 ILCS 570/401(c)(2) (West 2000); 720 ILCS 570/407(b)(1) (West 2006)), a Class X

felony. He contends that his trial counsel was ineffective for failing to move to discharge on

speedy-trial grounds when the State was allowed to amend the information, which previously

cited the Class 1 felony provision for possession with intent to deliver (720 ILCS 570/401(d)

(West 2000); 720 ILCS 570/407(b)(2) (West 2006)). He contends that the amendment was

a material change that charged a new offense. The State contends that the speedy-trial

provisions were not implicated because the amendment was formal to correct a miswriting.

We agree that the amendment was formal. Accordingly, we affirm.

¶ 2 I. BACKGROUND

¶ 3 In the early morning hours of April 21, 2007, officers executed a search warrant at

Shipp’s home. Shipp was not home at the time. Inside, they found 0.1 grams of cocaine, a

scale, a baggie corner with powder residue, baggies without corners, and 20.3 grams of

cannabis. No paraphernalia for consuming drugs was found. The house was within 1,000 feet

of a church.

¶ 4 Shipp arrived home shortly after, and officers approached him. According to one officer,

Shipp tossed an item that resembled a golf ball in a sandwich bag, and two pieces of paper

also floated to the ground. Another officer did not see Shipp throw anything, but did not have

Shipp’s hands in view at all times. A neighbor who was watching from his kitchen window

did not see Shipp throw anything. The general area was one in which there were a lot of drug

sales. After a struggle, Shipp was handcuffed, and the officers then found two $20 bills and

12 grams of cocaine in a baggie nearby on the ground. Shipp had $416 in one pants pocket

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and $363 in another.

¶ 5 Shipp was taken into custody on April 21, 2007. He was initially charged by complaint

with possession of a controlled substance with intent to deliver under section 407(b)(2). He

also was charged with possession of cannabis (720 ILCS 550/4(c) (West 2006)) and resisting

a peace officer (720 ILCS 5/31-1 (West 2006)). On May 17, 2007, he was charged with the

same offenses by information. The section 407(b)(2) charge alleged that, on April 21, 2007,

while within 1,000 feet of a church, Shipp “knowingly possessed with intent to deliver to

another person in violation of 570/401(c) more than 1 gram but less than 15 grams of a

substance containing cocaine, a controlled substance.”

¶ 6 At the arraignment, John Vogt was present for the State, and David Vella was

representing Shipp. The following colloquy occurred:

“THE COURT: Now, Mr. Vogt, you might wanna examine your charging document,

’cause the charging document reads different than the–the–the wording is different than

the charge itself. 4-407(b)(2) [sic] refers to an amount less than–less than a gram. 

MR. VELLA: I’m okay with that.

THE COURT: What?

MR. VELLA: I’m okay with that. We can leave it.

THE COURT: I mean if you want, I’d–I’ll leave it like that. I don’t–but it’s–it’s a

misnomer in sorts [sic].

I’ll admonish in regard to that then.”

¶ 7 The court then admonished Shipp that a violation of section 407(b)(2) was a Class 1

felony with a sentencing range of 4 to 15 years’ incarceration, a period of mandatory

supervised release, and a fine of up to $250,000. Vogt did not voice any concern about the

language in the information or the admonitions. Shipp pleaded not guilty, and motions for

discovery and a bond reduction were then discussed among the court and both of the

attorneys.

¶ 8 Shipp remained in custody until January 25, 2008, when he was released on bond. In

February 2009, he was arrested on other charges and, on February 5, 2009, he surrendered

in exoneration of bond.

¶ 9 On February 2, 2009, the parties appeared, and the defense voiced concern that, since the

State was basing the charge primarily on the cocaine found outside Shipp’s home, the jury

might become confused if items from inside the home were also allowed into evidence.

Defense counsel also noted that the charge had been misworded from the beginning, and he

stated that he assumed the State was going to try to prove possession of less than 1 gram

under section 407(b)(2) on the basis of the 12 grams that were found outside the home.

Defense counsel was concerned that, if the State were allowed to provide evidence of both

amounts of cocaine found, the jury might determine that the amount outside was not shown

beyond a reasonable doubt to belong to Shipp, but might convict because the amount inside

did belong to him.

¶ 10 A different assistant State’s Attorney, Joe Lentz, was present at the hearing, and Shipp

was then represented by Byron Sloan. The following colloquy occurred:

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“MR. LENTZ: Okay, Judge, as I indicated earlier, I assume this file has–is the

information as filed under the sub-section that–407, is it still 407(b)(2), or has it ever

been amended to (b)(1)?

THE COURT: It’s exactly as was indicated as Mr. Sloan has indicated, the Court

pointed out at the time of the preliminary hearing. It had the incorrect–something

incorrect, either in the body, or in the lettering, or whatever. I pointed that out at the

preliminaryhearing. I admonished the Defendant in regard to a class 1. It’s remaining the

same. Exactly as is, ever since then.

MR. LENTZ: Okay.

THE COURT: So that’s what it is.

MR. LENTZ: Okay. Judge, what I would ask to do is amend just the code section to

conform with the body of the language. I believe the language what is referring to an X,

but the code section refers to a 1, so I would ask to amend that to a (b)(1)?

MR. SLOAN: Judge, they can’t do that at this point. He’s been indicted on a class 1.

That would require another information and another indictment, if they wish to proceed

that way. I’m sorry, but another preliminary hearing or another formal charge. We have

been proceeding all this time–and I’ve got transcripts of your comments at that time, that

we have been proceeding all of this time on a class 1. They can’t amend it on the eve of

trial and bring an enhanced charge without any superceded indictment or a preliminary,

or anything.

MR. LENTZ: Well, what I would say, Judge, is that it should be–well, the text of the

information is that it’s a class X. I’ll be at [sic] the code section was (b)(2), it should have

been a (b)(1). I don’t think there’s any kind of–I would argue that there should be no

surprise as to that Judge.

THE COURT: Part of the Court agrees with you and part of the Court agrees with the

idea that that’s exactly what we pointed out a long time ago, Mr. Lentz. Way back on the

date of the preliminary hearing as Mr. Sloan says. It says it right in the transcript, I’m

certain of it, because I can still recall pointing that out at the time, and I’m quite surprised

that the State never corrected this in one way or another, at all.”

¶ 11 Lentz again asked to amend the information, stating that he believed that the matter was

a scrivener’s error. The defense argued that it had faced a Class 1 charge the entire time and

that the State could not enhance it simply by changing the statutory citation on the

information.

¶ 12 The court noted that the State had been on notice of the matter and that the court had

admonished Shipp on a Class 1 felony. But the court also stated that it found probable cause

based on facts that would support the Class X felony. Over defendant’s objection, the court

allowed the amendment and admonished Shipp on the Class X charge, but noted that,

because the class of the felony changed, it would allow a continuance. The citation to section

407(b)(2) was then changed on the information to section 407(b)(1).

¶ 13 Shipp was convicted and sentenced to 22 years’ incarceration on the Class X charge. A

motion to reduce sentence was denied, and Shipp appeals.

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¶ 14 II. ANALYSIS

¶ 15 Shipp contends that his trial counsel was ineffective for failing to file a motion to

discharge based on a violation of his speedy-trial rights because, when the information was

amended, the same limitations period applied and continuances obtained on the original

charge could not be attributed to him with respect to the new charge. He argues that the

amendment was material because it altered an essential element of the offense. There is no

dispute that, if Shipp is correct, he was not timely brought to trial.

¶ 16 A claim of ineffective assistance of counsel is reviewed according to the two-prong,

performance-prejudice test established in Strickland v. Washington, 466 U.S. 668 (1984).

People v. Boyd, 363 Ill. App. 3d 1027, 1034 (2006). “To obtain relief under Strickland, a

defendant must prove that defense counsel’s performance fell below an objective standard

of reasonableness and that this substandard performance caused prejudice by creating a

reasonable probability that, but for counsel’s errors, the trial result would have been

different.” Id.

¶ 17 “ ‘An attorney’s failure to seek discharge of his client on speedy-trial grounds generally

will be deemed ineffective assistance of counsel if there is a reasonable probability that the

defendant would have been discharged had a timely motion for discharge been made and no

justification has been proffered for the attorney’s failure to bring such a motion.’ ” Id.

(quoting People v. Staten, 159 Ill. 2d 419, 431 (1994)). Thus, if moving to discharge would

have been successful, Shipp’s counsel was ineffective for failing to do so.

¶ 18 Section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) provides that a

defendant is entitled to a trial within 120 days from the date he was taken into custody unless

his own acts occasioned delay. 725 ILCS 5/103-5(a) (West 2006).

¶ 19 “Where new and additional charges arise from the same facts as did the original charges

and the State had knowledge of these facts at the commencement of the prosecution, the time

within which trial is to begin on the new and additional charges is subject to the same

statutory limitation that is applied to the original charges.” People v. Williams, 94 Ill. App.

3d 241, 248-49 (1981). “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.” Id. However, this rule applies only to new and additional charges that are

subject to compulsory joinder under section 3-3 of the Criminal Code of 1961 (Criminal

Code) (720 ILCS 5/3-3 (West 2006)). People v. Williams, 204 Ill. 2d 191, 203 (2003).

¶ 20 Here, the State does not dispute that the charges were based on the same act. Indeed, the

act alleged in the text of the information never changed. Instead, the State contends that there

was no new or additional charge because the amendment was merely correcting a formal

defect as opposed to making a material change. If the matter concerned the amendment of

a formal defect, the speedy-trial provisions would not be implicated. See People v. IzquierdoFlores, 367 Ill. App. 3d 377, 385 (2006).

¶ 21 Section 111-3 of the Code requires a charge to include both the statutory provision for

the crime and the nature and elements of the offense. 725 ILCS 5/111-3(a)(2), (a)(3) (West

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2006); People v. Troutt, 51 Ill. App. 3d 656, 661 (1977). Section 111-5 of the Code (725

ILCS 5/111-5 (West 2006)) allows the amendment of an indictment, information, or

complaint at any time to correct a formal defect, including a miswriting. People v. Flores,

250 Ill. App. 3d 399, 401 (1993). Such an amendment is permissible if the change is not

material or does not alter the nature and elements of the charged offense. Id. Formal

amendment is warranted especially where there is no resulting surprise or prejudice to the

defendant or where the record clearly shows that the defendant was otherwise aware of the

actual charge. Id.

¶ 22 “[A]n error in the citation of the statute giving rise to a charge is a mere technical defect

which is subject to amendment [citations], particularly where the sections involved are not

separate and distinct offenses but are simply different ways in which the same offense may

be committed.” Id. Also, “[a]mendments of statutory provisions have been allowed where

the offense which the grand jury intended to bring was clear and the figures printed on the

indictment were onlymisprints.” People v. Betts, 78 Ill. App. 3d 200, 202 (1979); see People

v. Milton, 309 Ill. App. 3d 863, 867 (1999) (intent of the grand jury was clear).

¶ 23 Courts have typically found amendments to be material only where a defendant was

surprised by an amendment. For example, in People v. Patterson, 267 Ill. App. 3d 933

(1994), the defendant, who was arrested with 517 grams of cocaine, was initially charged by

indictment with possession with the intent to deliver more than 15 grams but less than 100

grams of a controlled substance. It was unknown why he was indicted on a reduced charge.

Before trial, the State was allowed to amend the indictment to charge possession with intent

to deliver more than 400 grams but less than 900 grams. The defendant was convicted, and

the First District vacated, stating that, in a drug case, the quantity of a controlled substance

possessed by a defendant is an essential element of the charge because the quantity is what

defines both the crime and the punishment. Id. at 939. Thus, the court held that the

amendment was material, and it remanded with directions to enter judgment on the lesser

offense and to hold a new sentencing hearing.

¶ 24 Likewise, in Betts, 78 Ill. App. 3d 200, the indictment originally charged the defendant

with delivery of a controlled substance that was a narcotic. It later was changed to charge

delivery of a controlled substance that was not a narcotic, which lessened the penalty. The

First District held that the amendment was material because it changed the penalty, and it did

not matter that it lessened the penalty because, had the grand jury known that the facts

presented justified prosecution for only a lesser offense, it might have decided that the

conduct was not so egregious as to warrant the expense of prosecution. Id. at 203-04.

However, the Betts court also noted that, had the charge been brought by another means, the

matter might not have been as prejudicial. Id. at 203.

¶ 25 In comparison, courts that have found amendments to be formal normally found that the

change did not surprise the defendant. For example, in Flores, during closing arguments an

amendment was made that changed the controlled substance at issue from heroin to cocaine.

The First District held that the amendment was formal because there was no surprise to the

defendant. The evidence originally presented to the grand jury dealt with cocaine, all of the

evidence at trial pertained exclusively to cocaine, and the defendant had previouslystipulated

that the substance was cocaine. Flores, 250 Ill. App. 3d at 402. Flores distinguished Betts,

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in which the amendment changed the class of felony, and thus changed the penalty. Id.

¶ 26 Similarly, in People v. Clark, 96 Ill. App. 3d 491(1981), abrogated on other grounds,

People v. Ramirez, 214 Ill. 2d 176 (2005), an information charged the defendant with

unlawful delivery of a controlled substance, citing a statutory provision that included the

substance as a narcotic. At the close of its case, the State was permitted to amend the

information to unlawful delivery of a controlled substance under a statutory section that did

not include the same substance as a narcotic, changing the offense from a Class 2 felony to

a Class 3 felony. That amendment was in conformance with testimony at trial that the amount

and type of substance was actually not within the schedule of narcotics. The Third District

observed that the defendant had not alleged prejudice as a result of the change. The court

then distinguished Betts on the basis that, unlike in Betts, the case involved an information,

and the decision to alter that was within the province of the State’s Attorney. Id. at 494.

Thus, the court affirmed. Id. at 495.

¶ 27 Shipp argues that, as in Patterson and Betts, the amendment in his case was material

because it had the effect of increasing the penalty. However, several key factors distinguish

Shipp’s case. Both Patterson and Betts involved an amendment to the factual allegations of

an indictment. Thus, in those cases, the actual facts alleged were changed, causing surprise

to the defendant and leaving uncertain which charge the grand jury intended. But here, Shipp

was charged by information, removing any concern about disregard of grand jury findings.

“ ‘[T]he State’s Attorney is endowed with the exclusive discretion to decide which of several

charges shall be brought, or whether to prosecute at all.’ ” People v. White, 2011 IL 109616,

¶ 25 (quoting People v. Jamison, 197 Ill. 2d 135, 161 (2001)). Thus, the decision to alter an

information is also within the province of the State’s Attorney. See Clark, 96 Ill. App. 3d at

494.

¶ 28 Further, because the information stated all along that Shipp was charged with possession

with intent to deliver more than 1 gram but less than 15 grams of cocaine, he cannot credibly

claim to have been surprised by the amendment. Indeed, Shipp’s counsel made it clear in his

pretrial motions that the defense was prepared for the State to prove possession of more than

one gram. In this regard, we find White persuasive. There, the court addressed a plea bargain

in which the defendant entered a plea with a factual basis that subjected him to a mandatory

enhanced penalty. However, the court did not include the enhancement in the sentence based

on the plea agreement. Our supreme court found that the factual basis for the charge

controlled. Thus, the court held that the sentence was void. White, 2011 IL 109616, ¶ 29.

¶ 29 Likewise, we find the facts alleged in the body of the charge controlling in this case.

Those facts, which never changed, clearly charged possession of more than 1 gram but less

than 15 grams of cocaine, a Class X felony amount. The only way that the State could have

charged the Class 1 felony would have been to amend the charge to change the amount of

cocaine. Thus, it is clear that the charge all along was the Class X felony and that the

statutory citation was a miswriting. Thus, the amendment of the information was formal,

Shipp’s speedy-trial right was not implicated, and his attorney was not ineffective for failing

to bring a motion to discharge.

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¶ 30 III. CONCLUSION

¶ 31 The amendment of the information was formal. Thus, Shipp was not denied a speedy trial

and did not receive ineffective assistance of counsel. Accordingly, the judgment of the circuit

court of Stephenson County is affirmed.

¶ 32 Affirmed.

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