## 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 . Shi pp , 2011 IL App (2d) 100197

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. PHI L L IP M. S HI PP, Defenda nt-Appellant.

District & N o. Second District Docke t No. 2-10-0197

Filed October 5, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y 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

. ) The St at e’ s amendment of an information charg ing defe ndant with

u n l awful possession of coca ine with intent to deliver under section 407(b)( 2) of the Co ntro ll e d Su b stance s Act to charg e unlawful possession

o f cocaine with intent to deliver under section 407(b)( 1) of the Act
, a Class X felony
, was a formal chang e arising from a miswriting, not a materia l chang e, def

endant’s speedy trial right was not implicated, and his counsel was not ine ffe ctive in f ailing to bring a motion to discharg e, since the fac ts neve r chang ed; there fore
, defe ndant’s conviction and
sentenc e we re a ffirme d.

Dec ision Under Review Appea l from the Circuit Court of Stephenson County
, No. 07-CF- 94; the Hon. Michae l P. Bald, Judge, pr esiding

J udg ment Affir med.Counsel on

Appea l T h o mas A. L ilien and Mark G. L evine, both of State Appel l at e Def ender ’s Off

ice, of Elg in, for appe llant.

J ohn H. Vogt, State’s At t orney , of Fr eepor t (L awr ence M. Ba

uer and B a r r y W. J acobs, both of State’s Attorney s Appellate Prosecutor’ s O f f ic e , of counse l), for the People.

Panel J USTI CE BI RKETT deliver ed the judgment of the c ourt, with opinion. Presiding J ustice J org ensen and J ustice Hud s on concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Phillip M. Shipp, a ppeals from his c onviction of possession of more than 1
g ram but less than 15 grams of coca ine wit h intent to deliver within 1,000 fee t of a c hurch (7 2 0 I L CS 570/401(c)( 2) (West 2000); 720 I L CS 570/407(b)(1) (West 2006)), a Class X felony

. He contends that his trial counsel was ineffe ctive for failing to move to discharg e on speedy-trial g rounds when the State was allowed to amend the information, which p r e v iously cited the Class 1 felony provision for possession with intent to deliver (720 I L CS 570/401(d) (West 2000) ; 720 I L CS 570/407(b)(2) (West 2006)). He contends that the amendment was

a materia l change t h at ch ar g ed a new offe nse. The State contends that the speedy-trial provisions wer e not implicated beca use the amendment was formal to corr ect a miswriting. We agree that the amendme nt was for mal. Acc ording ly , we a ffirm.

¶ 2 I . BA CKGROUND ¶ 3 In the early morning hours of April 21, 2007, office rs execut ed a s ea rc h wa rr an t at Shipp’s home. S hipp was not home at the t ime. Inside, they found 0.1 g ram s of cocaine, a scale
, a bag g ie corne r with powder residue, bag g ies wi t h o u t corners, and 20.3 g rams of

canna bis. No para

pherna lia for consuming drug s was found. The house was within 1,000 fee t of a c hurch. ¶ 4 Shipp arrived home shortly afte r, and office rs approa ched him. Acc ording to one off icer
, Shipp tossed an item that r esembled a g olf ball in a sandwic h bag , and two piec es of paper also floated to the g round. Another office r did not see Shipp throw any thing, 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 any thing. The g ener al are a was one in which there wer e a lot of drug sales. After a strug g le, Shipp was handcuf fed, and the office rs then found two $20 bills and 12 g rams of coca ine in a bag g ie near by on the ground. Shipp had $416 in one pants pocket

-2-and $363 in another

.

¶ 5 Shipp wa s taken into c ustody on April 21, 2007. He was initially charg ed by complaint with possession of a controlled substance with intent to deliver under section 407(b)( 2). He also was charg ed with possession of canna bis (720 I L CS 550/4(c) (West 2006)) and resisting

a peac e office r (720 I L CS 5/31-1 (West 2006)). On May 17, 2007, he was charg ed with the

same offe nses by information. The section 407(b)( 2) charg e alleg ed that, on April 21, 2007, while within 1
, 0 0 0 fe et of a churc h, Shipp “knowing ly possessed with intent to deliver to another person in violation of 570/4 01(c) more than 1 g ram but less than 15 g rams of a substance c ontaining c ocaine , a contr olled substance.” ¶ 6 At the arr aignmen t , J o h n Vo gt wa s p re s en t fo r the State, and David Vella wa s repr esentingShipp. The following c olloquy occur red:
“THE COURT: Now, Mr. Vog t, you might wanna examine your charg ing document, ’ca use the charg ing document rea ds differ ent than the–the–the wording is differ ent than the cha rg e itself. 4-407(b)(2) [ sic ] refer s to an amount less than–less than a g ram. MR. VEL LA: I ’m okay

with that. THE COURT: What?
MR. VEL LA: 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 reg ard to that then.” ¶ 7 T h e co u rt then admonished Shipp that a violation of section 407(b)( 2) was a Class 1 felony with a sentenc ing rang e of 4 t o 15 year s’ incar cer ation, a period of mandatory supervised r elea se, and a fine of up to $250,000. Vogt did not voice any conce rn about the languag e in the i nformation or the admonitions. Shi pp pleade d not guilty
, and mot ions for discovery and a bond reduc tion wer e then discu s s ed among the court and both of the attorney s. ¶ 8 Shipp rema ined in custody until J an u ary 25, 2008, when he was rele ased on bond. In Fe bruar y 2009, he wa s arr ested on other charg es and, on Februar y 5, 2009, he surr ender ed in exoneration of bond. ¶ 9 On Fe bruar

y 2, 2009, the parties appea red, and the defe nse voiced conce rn that, since the State was ba sing the cha

rg e primarily

on the coc aine f

ound outside Shipp’s home, the jury might become confuse d if items from inside the home we re als o allowed into evidenc e. Def ense counsel also noted that the charg e had been misworded from the beg inning, and he stated that he assumed the State was g oing to try t o p rove possession of less than 1 g ram under section 407 (b )( 2 ) o n the basis of the 12 g rams that wer e found outside the home. Def ense c ounsel was c oncer

ned that, if the State wer e allowed to pr ovide evidenc e of both
amounts of coca ine found, the jury might deter mine that the amount outside was not shown beyond a rea sonable doubt to belong to Shipp, but might convict beca use the amount inside did belongto him. ¶ 10 A diffe rent a ssistant S tate’s Attorney , J oe L entz, was prese nt at the hea ring , and Shipp was then r epre sented by

By ron Sloan. The f

ollowing c olloquy

occur red:

-3-“MR. L ENTZ : Okay
, J udg e, as I indicated earlier, I as s u m e this file has–is the information as filed under the sub-sec tion that–407, is it stil l 407(b)( 2), or has it ever been a mended to (b) (1)?
THE COURT: It’s exactly as was ind i ca t ed as Mr. Sloan has indicated, the Court pointed out at the time of t h e p re l iminary hearing. It had the incorre ct–something incorre ct, either i n t h e b o dy
, or in the lettering
, or whateve r. I pointed that out at the preliminary hearing. I admonished the Def endant in reg ard to a class 1. It’s rema ining the same. Exactly

as is, ever

since then.
MR. L ENTZ : Okay

. THE COURT: So that’s what it is.
MR. L ENTZ : Okay

. Judg e, what I would ask to do is amend just the code section to confor m with the body of the languag e. I believe the languag e what is ref erring to an X, but the code se ction ref

ers to a 1, so I

would ask to amend that to a (b)( 1)?
MR. SL OAN: J udg e, 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 proce ed that way

. I ’m sorry , but another preliminary hearing or another formal charg e. We have been proce eding all this time–and I ’ve g ot transcripts of your comments at that time, that

we have been proce eding all of this time on a class 1. They can’ t amend it on the eve of trial and bring an enhanc ed charg e without any superc eded indictment or a preliminary
, or any thing.
MR. L ENTZ : Well, what I would say , J udg e, is that it should be–we ll, 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 d o n ’t t hink there ’s any kind of–I would argue that there should be no surprise a s to that J udg e. THE COURT: Part of the Court agree s with you and part of the Court agree s with the idea that that’s exactly what we pointed out a long time ag o, Mr. L entz. Way back on the date of the preliminary hear ing as Mr. Sloan say s. It say s it right in the transcript, I ’m

cer tain of it, beca

use I can still rec all pointing that out at the time, and I ’m quite surprised that the State neve r cor

rec ted this in one way

or anothe r, at a ll.” ¶ 11 L entz ag ain asked to amend the information, stating that he believed that the matter wa s

a scrivene r’s err or. The defe nse argued that it had fac ed a Class 1 charg e the entire time and that the State could not enhanc e it simply by chang ing the statut o ry citation on the information. ¶ 12 The co u rt noted that the State had been on notice of the matter and that the court ha d admonished Shipp on a Class 1 felony

. But the court also stated that it found probable cause based on fac ts that would support the Class X felony

. Over defe ndant’s objection, the court allowed the amendment and admonished Shipp on the Class X cha rge, but noted that, beca use the class of the felony chang ed, it would allow a continuance

. The citation to section 407(b)( 2) wa s then cha

ng ed on the infor

mation to section 407(b)(1)

. ¶ 13 Shipp was convicted and sentenc ed to 22 year s’ incar cer ation on the Class X charg e. A motion to reduce se ntence was de nied, and Shipp appea ls.

-4-¶ 14 I I . ANALYSI S

¶ 15 Shipp contends that his trial co u n s el wa s i n ef fe ct ive for failing to file a motion to discharg e based on a violation of his speedy-trial rights beca use, when the information was amende d, the same limit ations period applied and co n t i n uance s obtained on the orig inal charg e could not be attributed t o him with respe ct to the new charg e. He arg ues that the amendment was materia l be cause it a ltered an essential element of the offe nse. There is no dispute that, if Shipp is corr ect, he was not timely brought to trial. ¶ 16 A claim of in ef fe ct i ve assistance of counsel is revie wed acc ording to the two-prong
, p erf ormanc e-pr ejudice test established in Strickland v. W ashington
, 466 U.S. 668 (1984). P eo p le v. Boyd
, 363 I ll. App. 3d 1027, 1034 (2006). “To obtain relief under Strickland
, a defe ndant must prove that defense c ounsel’s per formanc e fe ll below an objec tive standard of rea sonablene ss and that this substandard perf ormanc e cause d prejudice by cre ating a

rea sonable probability that, but for counsel’s err ors, the trial res ult would have been differ ent.” Id. ¶ 17 “ ‘An attorney ’s failure to seek discharg e of his client on speedy-trial g rounds g ener ally will be deeme d ineffe ctive assistance of counsel if there is a rea sonable probability that the defe ndant would have been discharg ed had a timely motion for discharg e been made and no justification has been proff ere d fo r t h e att orney ’s failure to bring such a motion.’ ” Id. (quoting People v. Staten
, 159 I ll. 2d 419, 431 (1994))

. Thus, if moving to discharg e would have be en succ essful, Shipp’s counsel wa s ineffe ctive for failingto do so. ¶ 18 Section 103-5(a ) of the Code of Cri m i n al P ro ce du re of 1963 (Code) provides that a defe ndant is entitled to a trial within 120 day s from the date he was taken into custody unless his own acts occ asioned de lay . 725 I L CS 5/ 103-5(a) (West 2006). ¶ 19 “Where new and additional charg es arise from the same fac ts as did the orig inal charg es and the State had knowledg e of these fac ts at the commence ment of the prosec ution, the time within which trial i s t o beg in on the new and additional charg es is subject to the same statutory limit ation that is a pplied to the orig inal charg es.” People v. W illiams
, 94 I ll. App. 3d 241, 248-49 (1981) . “Continuance s obtained in conne ction with the t rial of the origina l ch arge s cannot be attributed to defe ndants with respe ct to the new and additional char ges beca use these new and additional charg es wer e not befor e the court when those continuance s

we re o btained.” Id. Howeve r, t his rule applies only to new and additional charg es t h at ar e subject t o co mp u l sory joinder under section 3-3 of the Criminal Code of 1961 (Criminal Code) (720 I L CS 5/ 3-3 (West 2006)). People v . W illiams , 204 I ll. 2d 191, 203 (2003). ¶ 20 Her e, the State does not dispute that the charg es wer e based on the same act. Indeed, the
act alleg ed in the text of the information never chang ed. Instead, the State contends that there

was no new or additional charg e beca use the am en d m en t was mere ly corr ecting a formal defe ct as opposed t o making a mater i al chang e. I f t he matter conce rned the amendment of

a formal defe ct, the speedy-trial provi s io n s would not be implicated. See People v. IzquierdoFlores , 367 I ll. App. 3d 377, 385 (2006). ¶ 21 Section 111-3 of the C ode requires a charg e to include both the statutory provision for the crime and the nature and elements of the offe nse. 725 I L CS 5/111-3(a )(2)
, (a) (3) (West

-5-2006); Peopl e v. T r o u t t , 51 I ll. App. 3d 656, 661 (1977). Section 111-5 of the Code (725 I L CS 5/111-5 (West 2006)) allows t h e amendment of an indictment, information, or complaint at any time to corr ect a formal defec t, including a m iswriting. People v. Flores
, 250 I ll. App. 3d 399, 401 (1993). S u ch an am en d m ent is permissible if the chang e is not materia l or does not alter th e n at u re and elements of the charg ed offe nse. Id. For mal amendment is war

rante d esp ec i al ly wher e there i s no resulting surprise or prejudice to the defe ndant or wher e the rec ord clea rly shows that the defe ndant was otherwise awa re of the
actua l char g e. Id. ¶ 22 “[A]n err or in the citation of the statute g iving rise to a charg e is a mere technica l defe ct which is subjec t to amendment [citations]
, particula rly wher e the sections involved are not separ ate and distinct offe nses but are simply differ ent way s in which the same offe nse may be commit ted.” Id. Also, “[a]mendments of st atutory provisions have been allow ed wher e the offense whic h the grand jury intended to bringwas clear and t he figure s printed on the indictment wer e only misprints.” People v. Betts
, 78 I ll. App. 3d 200, 202 (1979); see People v. Milton , 309 I ll. App. 3d 863, 867 (1999) (intent of the grand jury was c lear). ¶ 23 Courts have ty pically found amendm en t s t o b e m at eria l only wher e a defe ndant was

su rp ri s ed b y an amendment. For example, in People v. Patterson
, 267 I ll. App. 3d 933 (1994), the defe ndant, who was arr ested with 517 grams of coca ine, was initially charg ed by indictment w ith possession with the intent to deliver more than 15 g rams but less than 100
g rams of a controlled substance. It was unknown why he was indicted on a reduc ed charg e. Be fore trial, the State was allowed to amend the indictment to charg e possession with intent
to deliver more than 400 g rams but less than 900 g rams. The defe ndant was convicted, and the First District vaca

ted, stating that, in a drug case , the quantity of a controlled substance possessed by a defe ndant is a n essential element of the charg e beca use the quantity is what define s both the crime and the punishment. Id. at 939. Thus, the court held that the amendment was materia l, and it rema nded with direc tions to enter jud gm en t o n the lesser offe nse and to hold a ne w sentenc ing he aring

. ¶ 24 L ikewise, in Betts
, 78 I ll. App. 3d 200, the indictment origina lly charg ed the def endant with delivery of a controlled substance that was a narco t i c. I t l at er was chang ed to charg e delivery of a c ontrolled substance that was not a narcotic, which lessened the penalty . The First District held that the amendment was materia l beca use it chang ed the penalty
, and it did
not matter that it lessened the penalty becau s e, h ad t h e g rand jury known that the fac ts prese nted ju s t i fied prosec ution for only a lesser offe nse, it might have decide d that the conduct was not so egreg ious as to wa rr an t the expense of prosec ution. Id. at 203-04. Howeve r, the Betts court also noted that, had the charg e been brought by another means, the matter might not have bee n as pre judicial. Id. at 203. ¶ 25 In compar ison, courts that have found amendments to be formal normally found that the chang e did not surprise the defe ndant. For example, in Flores
, during closing arguments an amendment was made that chang ed the controlled substance at issue from heroin to coca ine. The First District held that the amendment was formal beca use there was no surprise to the defe ndant. The evidenc e orig inally prese nted to the g rand jury dealt with coca ine, all of the evidenc e at trial perta ined exclusively to coca ine, and the defe nda nt h a d p r e viously stipulated that the substance was c ocaine

. Flores , 250 I ll. App. 3d at 402. Flores distinguished Betts
,

-6-in which the ame ndment chang ed the c lass of fe lony , and thus cha ng ed the pe nalty

. Id. ¶ 26 Simi larly
, in People v. Clark
, 96 I ll. App. 3d 491(1981), a b r o gated on other grounds
, People v. Ramirez
, 214 I ll. 2d 176 (2005), an information charg ed the defe ndant with unlawful delivery of a controlled substance, citing a statuto ry provision that included the

sub s t ance as a narc otic. 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 inc lude the same substance as a narc otic, chang ing the offe nse from a Class 2 felony to

a Class 3 felony

. That amendment was in confor mance with testimony at trial that the amount and ty pe of substanc e wa s actua lly not within the schedule of na rcotics. The Third District observe d that the defe ndant had not alleg ed prejudice as a result of t h e change

. The court then distinguished Betts on the basis that, unlike in Betts
, the case involved an information, and t h e d ec i sion to alter that was within the province of the State’s Attorney

. Id. at 494. Thus, the cour

t affir med. Id. at 495. ¶ 27 Shipp argues that, as in Patterson and Betts
, the amendment in his case wa s m at er ial beca use it had the eff

ect of incre asing the penalty

. Howeve r, sever al key fac tors distinguish Shipp’s case

. Both Patterson and Betts involved an amendment to the fac tual alleg ations of

an indictment. Thus, in those case s, the actua l fac ts alleg ed wer e chang ed, causing surprise
to the defe ndant and leaving uncer tain which charg e the g rand jury intended. But here
, Shipp

was charg ed by information, removing any conce rn about disreg ard of g rand jury finding s. “ ‘[T] he State’s Attorney is endowe d with the exclusive discretion to decide which of sever al charg es shall be brought, or whether to prosec ute at all.’ ” People v. W hite
, 2011 I L 109616, ¶ 25 (quoting People v. Jamison
, 197 I ll. 2d 135, 161 (2001))

. Thus, the decision to alter an information is also within the province of the State’s Attorney

. See Clark
, 96 I ll. App. 3d at 494. ¶ 28 Fur

ther, beca use the information stated all along that Shipp was charg ed with posse ssion with intent to deliver more than 1 g ram but less than 15 g rams of coca ine, he cannot cre dibly claim to have been surprised by the amendment. Indeed, Shipp’s counsel made it clea r in his pretria l motions that the defe nse was prepa red for the State to prove possession of more than

one g ram. In this reg ard, we find W hite persua sive. There
, the court addre ssed a plea barg ain in which the defe ndant enter ed a plea with a fac tual basis that subjected him to a mandatory enhanc ed penalty

. Howeve r, the court did not include the enhanc ement in the sentenc e based

on the plea agree ment. Our supre m e co u rt found that the fac tual basis for the charg e controlled. Thus, the c ourt held that the sente nce w as void. W hite , 2011 I L109616, ¶ 29. ¶ 29 L i k ew i s e, we fi n d t h e fac ts alleg ed in the body of the charg e controlling in this case. Those fac ts, which never chang ed, clea rly charg ed possession of more than 1 g ram but less than 15 g rams of coca ine, a Class X felony amount. The only way that the State could have char ged t h e Class 1 felony would have been to amend the charg e to chang e the amount of

coca ine. Thus, it is clea

r that the charg e all along was the Class X fel o n y an d 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 ineffe ctive for failing to bringa motion to discharg e.

-7-¶ 30 I I I . CONCLUSI ON

¶ 31 The amendment of the information was formal. Thus, Shipp was not denied a speedy trial and did not rec eive ineffe ctive assistance of counsel. Acc ording ly
, the judgme nt of the circ uit court of Stephe nson County is affirme d.

¶ 32 Affir

med.

-8-