No. 2--04--0515 filed: 8/28/06

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_____ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

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_____ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) No. 00--CF--2813 v. ) ) CARLOS IZQUIERDO-FLORES, ) Honorable ) John T. Phillips, Defendant-Appellant. ) Judge, Presiding.

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_____ JUSTICE McLAREN delivered the opinion of the court: After admitting that he strangled his aunt, defendant, Carlos Izquierdo-Flores, was charged by indictment with se cond-degree murder (720 ILCS 5/9--2(a)(1), (a)(2) (West 2000)). More than 120 days after defendant f iled a speedy-trial demand on the original second-degree-murder charges, t he State filed a second indict ment charging first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (Wes t 2000)). Relying on speedy-trial and compulsory-joinder principles, defendant moved to dismiss the second indictment, and the trial court granted his moti on based upon the speedy-trial cl aim. The State appealed, and this court reversed and remanded the cause to the trial court on the first-degree-murder charges. People v. Izquierdo-Flores , 332 Ill. App. 3d 632 (2002). Following a bench trial, defendant was found guilty of first-degree murder and sentenced to 30 years' imprisonment.No. 2--04--0515

- 2 - Defendant appeals, arguing that: (1) we should re consider our decision in the prior appeal in light of our supreme court' s decision in People v. Williams , 204 Ill. 2d 191 (2003); (2) the trial court erred by failing to accept his gu ilty plea to second-degree murder; (3) he received ineffective assistance of counsel; and (4) he is entitled to an additional day of credit against his sentence. We vacate defendant's conviction in light of Williams and remand for further proceedings. Because of the vacatur on the firs t issue, we determine that the last three issues on appeal are moot, and we do not address them. BACKGROUND We begin by summarizing the facts precedi ng the first appeal in this case. On September 6, 2000, defendant wa s arrested in connection with the death of his aunt, Adelina Flores. According to defendant, his aunt had attacked him with a belt. Acting in self-defense, he strangled her using his bare hands. On S eptember 7, 2000, the State charged defendant by complaint with second-degree murder. On the same date, defendant filed a speedy-trial demand. Also on that dat e, forensic pathologist Dr. Nancy Jones performed an autopsy on Flores's body. The aut opsy report, dated September 16, indicated that strangulation was the cause of death. On September 20, 2000, the State filed a two-count i ndictment charging defendant with second-degree murder. Count I alleged that, on September 6, 2000, while committing first-degree murder and acting under a sudden and intense passion resulting from serious provocation by the victim, defendant choked Flores with his hands, thereby causing her death. Count II alleged that defendant acted under an unreasonable belief that circumstances that would justify or exonerate the killing were present.No. 2--04--0515

- 3 - Over the next several months, the parti es agreed to several continuances and engaged in plea negotiations. During a January 16, 2001, hearing, the Stat e sought leave to dismiss the second-degree-murder charges and f ile first-degree-murder charges. The State explained that the second-degree -murder charges were based on defendant's statement to the police that he and Flores got into a fight and that, while defending himself, he strangled Flores with his hands. However, Dr. Jones's findings showed that defendant's theory was implausible. According to t he State, Dr. Jones had been out of the country for the entire month of December. When she returned in January 2001, she reviewed the autopsy photographs and her report and opi ned on January 12, 2001, that the strangulation could not have been accomplished manually. Instead, s he opined that the marks on the victim's neck were made by a ligature, such as a rope, belt, or piece of clothi ng. As a result, the State now intended to pursue first-degree-murder charges. Defense couns el objected to the new charges, noting that defendant had been in cu stody for months and was prepared to offer a "straight" plea to the second-degree-mu rder charges. The tr ial court expressed concern over speedy-trial issues and reserved ruling on the State's motion. The case was continued. On January 17, 2001, the State filed a second, three-c ount indictment charging firstdegree murder. The second indi ctment alleged that defendant used an object to strangle the victim. Defendant moved to dismiss the second indictment. Relying on speedy-trial principles, the trial court grant ed this motion. In particular, the court found that the new charges arose from the same ac ts that gave rise to the orig inal charges and that the new charges were not the result of newly discovered evidence. As a result, the first-degreemurder charges were subject to the original speedy-trial term. Because the first-degree-No. 2--04--0515

- 4 - murder charges were not before the court when defendant requested or agreed to the continuances, any delay that was attributed to defendant in connection with the original charges could not be applied to the new charges. The trial court denied the State's moti on to reconsider and denied defendant's request to be released pursuant to Supreme Court Rule 604(a)(3) (188 Ill. 2d R. 604(a)(3)). On February 8, 2001, the State f iled a certificate of impairme nt and a timely notice of appeal. On appeal, the State argued that the first-degree-murder charges were not "new and additional charges." Because the second-degr ee-murder charges included all of the elements of first-degree murder , the State reasoned that the first-degree-murder charges were actually before the trial court from the beginning of the prosecution. Izquierdo-Flores , 332 Ill. App. 3d at 637. In response, def endant argued that, although t he second indictment did not add any new elements to the charged off ense, it did place a burden on him that did not exist before. Izquierdo-Flores , 332 Ill. App. 3d at 637. De fendant pointed out that by charging him with second-degree mur der, the State alleged that it could prove the elements of first-degree murder, but conceded the presenc e of mitigating factors. Izquierdo-Flores , 332 Ill. App. 3d at 637. Thus , if the State were allow ed to withdraw the second-degreemurder charges and charge him with first-degr ee murder, he would be required to litigate whether a mitigating factor was present. Izquierdo-Flores , 332 Ill. App. 3d at 637. This court agreed with the State that the first-degree-murder charges in the second indictment were not "new and additional charges." Izquierdo-Flores , 332 Ill. App. 3d at 639. We stated that, "[b]ecause the first-degr ee murder charges here do not require defendant to defend against any elements that were not before the tr ial court previously, allowing the State to proceed on the second indictment would not frustrate the pur pose of the speedy-trialNo. 2--04--0515

- 5 - statute." Izquierdo-Flores , 332 Ill. App. 3d at 639. Accord ingly, the delays attributed todefendant in connection with the second-degree-murder charges applied to the first-degreemurder charges as well. Because the speedy-t rial term had not expired when the State filed the second indictment, we held that the trial cour t erred by dismissing the second indictment. Izquierdo-Flores , 332 Ill. App. 3d at 639. On remand, defendant was arraigned on th ree counts of first-degree murder. Pursuant to the State's motion, the trial c ourt dismissed the seco nd-degree-murder charges. A bench trial commenced in January 2004, and de fendant was found guilty of two counts of first-degree murder. Defendant filed a posttrial motion, which the tria l court denied. The court sentenced defendant on only one count of first-degree murder, imposing a term of 30 years' imprisonment. Defendant moved to rec onsider his sentence, and the trial court denied that motion. Defendant's ti mely notice of appeal followed. ANALYSIS Defendant first argues that we should recons ider our decision in the prior appeal in light of Williams , a case decided by our supreme court after defendant's first appeal. Relying on Williams , defendant argues that the State violated (1) the s peedy-trial statute by charging him with first-degree murder more than 120 days after he filed a speedy-trial demand on the original charges, and (2) the co mpulsory-joinder stat ute by failing to prosecute both the first-degree-murder and the second-degree-murder charges at the commencement of the prosecution. The State responds that t he law of the case doctrine bars review of this issue. While the State a cknowledges that the law of the case doctrine does not limit this court's power to revisit an issue if our initial decision was clearly erroneous and would work a manifest inju stice (Bond Drug Co. v. Amoco Oil Co. , 323 Ill.No. 2--04--0515

- 6 - App. 3d 190, 198 (2001)), the State contends that Williams does not conflict with our previous decision. We disagree. In Williams , our supreme court discussed the re lationship between the speedy-trial statute and the compulsory-joinder statute. There, the def endant was originally charged with one count of contributing to the criminal delinquency of a ju venile in connection with the murder of James Patterson. Williams , 204 Ill. 2d at 196. T hen, 168 days after he was arrested on the contributing c harge, the defendant was also c harged with one count of firstdegree murder in connection with Patterson's death. Williams , 204 Ill. 2d at 196. The defendant contended that t he State violated the speedy-trial act when it charged him with first-degree murder 168 days after it charged hi m with contributing to the delinquency of a juvenile. Williams , 204 Ill. 2d at 197. According to the defendant, because these charges were subject to compulsory joinder, pretri al continuances attributable to him on the contributing charge were not attributable to him on the murder charge. Williams , 204 Ill. 2d at 197-98. The court noted that applicati on of the speedy-trial act is a straightforward counting exercise when a defendant is charged with a single offense; however, its application becomes more complicated when a defendant is c harged with multiple, but factually related, offenses at different times. Williams , 204 Ill. 2d at 198. Under the speedy-trial statute, section 103--5(a) of the Code of Criminal Procedure of 1963 (Code), a defendant who is in custody shall be tried within 120 days from the date he is taken into custody. 725 ILCS 5/103--5(a) (West 2000). Section 103--5(f) prov ides further that the 120-day period will be suspended during any delay occasioned by t he defendant. 725 ILCS 5/103--5(f) (West 2000).No. 2--04--0515

- 7 - The rule for determining the number of s peedy-trial days attributable to the State when new and additional charges are brought against a previously charged defendant was first stated in People v. Williams , 94 Ill. App. 3d 241 (1981) (Williams I ). Specifically, the court stated: "Where new and additional charges arise from the same facts as did the original charges and the State had knowl edge 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 app lied to the original charges. Continuances obtained in connection with the trial of th e original charges cannot be attributed to defendants with res pect to the new and additional charges because these new and additional charges we re not before the court when those continuances were obtained." Williams I , 94 Ill. App. 3d at 248-49. In Williams , our supreme court reiterated its approval of this rule but stated that it applies only to new and additional charges that are subject to compulsory joinder under section 3--3 of the Criminal Code of 1961 (Cri minal Code) (720 ILCS 5/ 3--3 (West 2000)). Williams , 204 Ill. 2d at 203-04; People v. Boyd , 363 Ill. App. 3d 1027, 1035 (2006). The compulsory-joinder provision of the Criminal Code states as follows: "(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. (b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecut ion, except as provided in Subsection (c), if they are based on the same act

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- 8 - (c) When 2 or more offenses are char ged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately." (Emphasis added.) 720 ILCS 5/3--3 (West 2000). Compulsory joinder requires the State to bring multiple charges in a single prosecution. People v. Quigley , 183 Ill. 2d 1, 13 (1998). The Williams court explained that the "same act" language in section 3--3 of t he compulsory-joinder statute does not include independent acts constituting different offenses , and there is no requi rement of joinder where multiple offenses arise from a series of related acts. Williams , 204 Ill. 2d at 199. Given the interaction between compulsory-joinder principles and the speedy-trial guarantee, our supreme court concluded that the speedy-tri al statute should not be interpreted to require joinder that is not al ready mandated by section 3--3 of the Criminal Code. Williams , 204 Ill. 2d at 203-04. In this case, the speedy-trial period for the original second-degree-murder charges will also apply to the first-degree-murder charges only if the first-degree-murder charges are "new and additional charges" that are subject to compulsory joinder. As previously discussed, this court held in defendant's firs t appeal that the first- degree-murder charges were not new and additional charges, because t he elements of first-degree murder and second-degree murder are i dentical. Izquierdo-Flores , 332 Ill. App. 3d at 638. Our decision in that case did not address the compulsory-joi nder statute, but focused only on whether the first-degree-murder counts constituted "new and additional charges." As in the previous appeal, the State again argues that the firs t-degree-murder counts were not "new and additional charges," and that Williams therefore does not control t he outcome of this case. Specifically, the State argues that the new first-degree-mur der charges did not containNo. 2--04--0515

- 9 - substantial changes that alte red the nature or the element s of the second-degree-murder charges. We disagree. Second-degree murder differs from first-degr ee murder because of the presence of a statutory mitigating factor such as a seri ous provocation or an unreasonable belief in justification. People v. Porter , 168 Ill. 2d 201, 213 (1995). Thus, although the second indictment did not add any new elements to the charged offense, it did place on defendant a burden that did not exist bef ore. A defendant charged with second-degree murder is not required to prove anythi ng. People v. Golden , 244 Ill. App. 3d 908, 918 (1993). The State must prove all of the elem ents of first-degree murder and concede the presence of a mitigating factor. Golden , 244 Ill. App. 3d at 919. However, when a defendant is on trial for first-degree murder, to be found guilty of sec ond-degree murder, the de fendant must prove by a preponderance of the evidence the presence of a statutory mitigating factor. 720 ILCS 5/9--2(c) (West 2000). Thus, if the State we re able to withdraw the second-degree-murder charges and charge him with first-degree mu rder, defendant would bear the burden of proving the presence of a mitigating factor, wh ich places an additional issue before the trier of fact. First-degree murder is a more se rious offense with greater penalties than seconddegree murder. People v. Jeffries , 164 Ill. 2d 104, 121- 22 (1995). Given the distinction between first-degree and second- degree murder, we cannot a ssume that defendant would have agreed to continuances if he had faced both charges. We also observe that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reas onable doubt pursuant to Apprendi v. New Jersey , 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). There is a substantial difference in the punishments of first- and second-degree murder. Thus, the issue of aNo. 2--04--0515

- 10 - mitigating factor is an additional element or fact that distinguishes the two crimes. It is a distinction with a difference, contrary to the holding of this court in the prior appeal. We believe that our conclusion is consistent with the rationale fo r compulsory joinder stated in Williams : "If the initial and subsequent charges f iled against the defendant are subject to compulsory joinder, delays attributable to the defendant on the in itial charges are not attributable to the defendant on the subs equent charges. The harm in a contrary result is obvious: a trial by ambush. The State could lull the defendant into acquiescing to pretrial delays on pending char ges, while it prepared for a trial on more serious, not-yet-pending charges. We cannot presume that a defendant would have agreed to a continuance if he had fac ed both charges. As Justice Kuehn presciently observed, 'All choices about requests that would delay proceedings would be made under a false understanding as a re sult of this deception.' When the State filed the more serious charges, t he defendant would face a Hobson's choice between a trial without adequat e preparation and further pretrial detention to prepare for trial. Today, we do not cr eate a loophole for criminal defendants. Instead, we close a loophole which would allo w the State to circum vent a statutorily implemented constitutional right." Williams , 204 Ill. 2d at 207. Moreover, the two cases relied upon by t he State that discuss "new and additional charges" are not relevant to this case. People v. Woodrum , 354 Ill. App. 3d 629 (2004), for example, concerned a defective indictment. See Woodrum , 354 Ill. App. 3d at 640-41 (the original indictment failed to allege a necessary element of th e crime, and the defendant had been in custody for over 120 days by the time the indictment was co rrected). People v.No. 2--04--0515

- 11 - Doss , 347 Ill. App. 3d 418 (2004), on the other hand, concerned a formal rather than a substantive amendment to an i ndictment so that speedy-tri al provisions were not implicated. See Doss , 347 Ill. App. 3d at 425-26 (the am endment of the indictment from "toy pistol" to "pistol" was formal and not subs tantive, because it did not alter the nature of the offense). The State also contends that Williams is distinguishable. Acco rding to the State, this case involves essentially the same crimes, first-degree murder and second-degree murder, while Williams involved multiple but factually related cr imes that occurred at different times. We disagree. Like the case at bar, t he contributing and murder charges in Williams were subject to compulsory joinder because they we re alternative theories on the same facts. Williams , 204 Ill. 2d at 201. As the prosecutor in Williams commented, " 'There is no change in discovery. There is no change in witnesses. There is no change in any evidence that would be presented. It's preliminarily an alter native theory which may--which a jury could find based upon the same facts which were presented.' " Williams , 204 Ill. 2d at 201. As a result, the delays attributable to the def endant on the contributing charge were not attributable to the defendant on the murder char ge, and the State violat ed the speedy-trial act on the murder charge. Williams , 204 Ill. 2d at 207-08. In so holding, our supreme court relied upon its earlier decision in Quigley , where the dispute cent ered upon whether felony driving under the influence (DUI) and misdem eanor DUI charges were based on the "same act," and thus subject to compulsory joinder. Williams , 204 Ill. 2d at 199-200; Quigley , 183 Ill. 2d at 7. Because the felony and mi sdemeanor charges were based on the same act, they were required to be tried together, meaning that once the speedy-tri al period expired onNo. 2--04--0515

- 12 - the misdemeanor charge, it also ran on the felony charge. Williams , 204 Ill. 2d at 200; Quigley , 183 Ill. 2d at 10, 16. Likewise, we find People v. Derr , 346 Ill. App. 3d 823 (2004), to be instructive on the issue of compulsory joinder. There, the defendant was initially c harged with involuntary manslaughter and concealment of a homicidal death. Derr , 346 Ill. App. 3d at 826. Almost three years after the original charges had been lodged and almost three years after the defendant had demanded a speedy trial on those charges , the State filed a motion for leave to file an amended information that charged first-degree murder. Derr , 346 Ill. App. 3d at 826. According to the State, no prejudice would result to the defendant from the desired amendments, because the additional counts did not arise out of any additional facts or circumstances. Derr , 346 Ill. App. 3d at 826. The court disagreed, stating that, "[i]n effect, the motion set forth why the new charge was subject to compulsory joinder." Derr , 346 Ill. App. 3d at 826. The court went on to say that defense counsel's failure to pursue the defendant's speedy-trial rights denied the def endant a legal avenue that would have protected him from the murder charges. Derr , 346 Ill. App. 3d at 827. In other words, the new charges should have been joined in the char ging instrument from the prosecution's inception, and none of the numer ous continuances obtained on the original charges had tolled the speedy-trial demand on the new charges. Derr , 346 Ill. App. 3d at 827. As we stated in our previous decision, there is no question that the second indictment arises out of the same incident upon which the original charges were based. IzquierdoFlores , 332 Ill. App. 3d at 639. In addition, this is not a case where the delay in filing the first-degree-murder charges was due to the disco very of new evidence. Instead, as we previously found, the delay was the result of t he State's lack of diligenc e in investigating theNo. 2--04--0515

- 13 - case. Izquierdo-Flores , 332 Ill. App. 3d at 639-40. In light of our supreme court's discussion of the relationship between the speedy-trial statute and the co mpulsory-joinder statute in Williams , we must reconsider our previous dec ision and now reach an opposite result. Because the original second-degree-murder charges and the new first-degree-murder charges were based on the same act of strang ling Flores, the charges were subject to compulsory joinder. Under Williams , if initial and subsequent charges filed against a defendant are subject to compulsory joinder, delays attributable to the defendant on the initial charges are not attributable to the defendant on the subs equent charges. Williams , 204 Ill. 2d at 207. As a result, the delays attributable to defendant on the second-degreemurder charges were not attributable to defendant on the first-degree-murder charges, and the State violated the speedy-tri al act with respect to the first-degree-murder charges. Accordingly, defendant's conviction is vacated. See Williams , 204 Ill. 2d at 207-08. We believe, in light of the Williams decision, that our init ial decision was clearly erroneous and would work a manife st injustice (see Bond Drug Co. , 323 Ill. App. 3d at 198) were we not to vacate the proceedings on remand and reinstate the status quo ante . See Applegate v. Department of Transportation , 335 Ill. App. 3d 1056, 1063 (2002) (vacatur restores the status quo ante , as though a judgment had never been entered). As this court explained in People v. Eidel , 319 Ill. App. 3d 496, 504 (2001): "T o 'vacate' a judgment is to nullify or cancel it. [Citation .] A judgment that has been vacated is void. [Citations.] It is 'entirely destroyed.' [Citation.] The vacatur restores the par ties to the status quo ante , as though the trial court judgment had never been entered." Eidel , 319 Ill. App. 3d at 504; see also Williamsburg Village Owners' Ass'n v. Lauder Associates , 200 Ill. App. 3d 474, 483 (1990) (ascribing similar effect to reversal). Had the trial cour t's judgment in the prior appealNo. 2--04--0515

- 14 - been affirmed, the case would have proceeded to trial on only the second-degree-murder charges. It is noteworthy that defendant claims that the tria l court abused its discretion when it failed to accept his blind plea of gu ilty to the charge of second-degree murder, and he requests that we "remand the case to the tria l court with instructions that the trial court allow the defendant to plead anew to second degree murder." We believe that such an admonishment is unnecessary because the disposit ion entered in this cause is for further proceedings relating only to the second-degree-murder charges. CONCLUSION For the above reasons, defendant's conviction of first-degree murder is vacated and the cause is remanded for further proceedings consistent with this opinion. Vacated and remanded with directions. BYRNE, J., concurs. JUSTICE BOWMAN, dissenting: I respectfully dissent. In my opinion, our original decision permitting the State to charge defendant with first-degree murder estab lished the law of the case, and our supreme court's decision in People v. Williams , 204 Ill. 2d 191 (2003), is not contrary to this holding. For the following reasons, I would affirm defendant's conviction of first-degree murder. LAW OF THE CASE DOCTRINE Under the law of the case doctrine, iss ues presented and disposed of in a prior appeal are binding and control in the trial cour t upon remand, as well as in the appellate court in a subsequent appeal (Zabinsky v. Gelber Group, Inc. , 347 Ill. App. 3d 243, 248 (2004)), unless the facts presented are so different as to require a different interpretation (Bilut v. Northwestern University , 296 Ill. App. 3d 42, 47 (1998)). "The purpose of the law ofNo. 2--04--0515

- 15 - the case doctrine is to protect settled expec tations of the parties, ensure uniformity of decisions, maintain consistency during the c ourse of a single case, effectuate proper administration of justice, and bring lit igation to an end." People v. McDonald , No. 1--03-- 1283, slip op. at 3 (June 30, 2006). There are two exceptions to the law of the case doctrine, neither of which is applicabl e in this case. Foster v. Kanuri , 288 Ill. App. 3d 796, 799 (1977). The first exception applies where our supreme court, following the first appeal, makes a contrary ruling on the precise issues of law on the which the appellate court had based its prior decision. Martin v. Federal Life Insurance Co. , 164 Ill. App. 3d 820, 824 (1987). The second exception a llows the reviewing court to depart from the doctrine of the law of the case if the cour t finds that its prior decision was palpably erroneous. Foster , 288 Ill. App. 3d at 799. Unlike the majority, I do not believe that our original decision is contrary to Williams or "palpably erroneous." Thus, the law of the case doctrine bars relitigation of whether the State properly char ged defendant with first-degree murder. The speedy-trial period for the original se cond-degree-murder charges also applies to the first-degree-murder charges only if the first-degree-mur der charges are "new and additional charges" that are subj ect to compulsory joinder. In defendant's first appeal, this court held that the first-degree -murder charges did not constitute "new and additional charges," because the elements of first- degree murder and second-degree murder are identical. People v. Izquierdo-Flores , 332 Ill. App. 3d 632, 638 (2002) . In other words, the first-degree-murder charges did not require defendant to defend against any elements that were not before the trial court previously, and allowing the State to proceed on the second indictment did not frustrate the purpose of the speedy-trial statute. Izquierdo-Flores , 332 Ill.No. 2--04--0515

- 16 - App. 3d at 639. Given the unique relationship between first- and second-degree murder, as discussed below, I see no reason to depart from our earlier ruling. Section 9--2 of the Crimi nal Code of 1961, which defines the offense of seconddegree murder, provides that "[a] person co mmits the offense of second degree murder when he commits the offense of first-degree murder *** and either of the following mitigating factors are present." (Emphasis added.) 720 IL CS 5/9--2 (West 2000). Accordingly, when defendant was originally charged with second-degree murder, he was also, in effect, being charged with first-degree murder . See People v. Thompson , 354 Ill. App. 3d 579, 584 (2004) (first- and second-degree mur der both require the same ment al state of either intent or knowledge); see also People v. Parker , 358 Ill. App. 3d 371, 377 (2005) (the elements of first- and second-degree murder are identical). In order to convict defendant of second-degree murder, the State must still prove all of the elements of first-degree murder . See D. Shanes, Murder Plus Mitigation: The "Lesser Mitigated Offense" Arrives in Illinois , 27 J. Marshall L. Rev. 61, 114
(1993). Stated differently, a defendant cannot be found guilty of second-degree murder if the State fails to prove any of the elements of first-degree mu rder. See 27 J. Marshall L. Rev. at 114. In People v. Jeffries , 164 Ill. 2d 104 (1995), our supr eme court made clear that second-degree murder is not a lesser included o ffense of first-degree murder, but is more accurately described as a "lesser mitigated offense of first-degree murder." Jeffries , 164 Ill. 2d at 122. This characterization reveals the unique relationship between first-degree and second-degree murder: "Where a defendant has been convicted of a lesser included offense, one may assume the State failed to prove an element of the greater o ffense or that theNo. 2--04--0515

- 17 - defendant acted with a less cul pable mental state than that required to prove the greater offense. This differs from the situation involving first and second degree murder, where the State must prove each of the elements of first-degree murder beyond a reasonable doubt before the fact finder may consider whether a mitigating factor has been established that would reduc e first-degree murder to second degree murder." (Emphasis in orig inal.) People v. Kauffman , 308 Ill. App. 3d 1, 10 (1999). Indeed, second-degree murder di ffers from first-degree murder only because of the presence of a statutory mitigati ng factor, such as a serious provocation or an unreasonable belief in justificati on. People v. Porter , 168 Ill. 2d 201, 213 (1995). However, mitigating factors are not elements of second-degree mur der; they exist merely to mitigate one's culpability and to lessen the resulting sentence im posed. See D. Sternicki, The Void Left in Illinois Homicide Law After P eople v. Lopez: The Elimination of Attempted Second Degree Murder , 46 DePaul L. Rev. 227, 253 (1996); see also People v. Golden , 244 Ill. App. 3d 908, 918 (1993) (the mitigating fa ctors are not elements of the offense but are affirmative defenses that do not bear upon the ultimate burden of proof). Be cause second-degree murder do es not contain different

elements from first-degree murder, the se cond indictment charging first-degree murder did not require defendant to

defend against any elements that were not before the trial court previously. Furthermore, while defendant argues that, by being charged with first-degree murder, he was then required to prove the existence of a mitigating factor to reduce the offense to second-degree murder, I disagree. In our original decision, we specifically found that the second indictment alleging fi rst-degree murder did not necessarily place any additional burden on defendant. Izquierdo-Flores , 332 Ill. App. 3d at 638. This is because defendant was not required to prove a mitigating factor. See Golden , 244 Ill. App. 3d at 917. AsNo. 2--04--0515

- 18 - defense counsel argued on remand, the burden was not exclusively on defendant to establish a mitigating factor. While defendant could provide such evidence, defendant was not required to do so, because t he State's evidence could estab lish a mitigating factor as well. See Golden , 244 Ill. App. 3d at 917. Pattern jury instructions for determining first- or second-degree murder state that a defendant is not required to present evidence of a mitigating factor; rather, the jury is directed to consider all of the evidence to determine the existence of a mitigating factor. Golden , 244 Ill. App. 3d at 917. Because the first-degree-murder charges were essent ially before the court from the beginning of the

prosecution, and because the second indictment charging first-degree murder did not add new elements to the

charged offense of second-degree murder, the first-degree -murder charges did not constitute "new and additional charges." As a result, the compulsory join der statute was not implicated, and Williams is inapplicable. Unlike

the case at bar, which turns on the unique relationship between fi rst- and second-degree murder, Williams clearly involved "new and additional charges." There, the defen dant was charged with first-degree murder 168 days

after he was charged with contributing to th e criminal delinquency of a juvenile. Williams , 204 Ill. 2d at 196. Because first-degree murder was clearly a "new an d additional charge" that was based on the same act

and therefore subject to compulsory jo inder, the delays attributable to the defendant on the original contributing

charge were not attributable to the defendant on the murder charge. Williams , 204 Ill. 2d at 207-08. As previously stated, this case differs from Williams in that defendant here was not faced with "new and

additional charges"; essentially, the fi rst-degree-murder charges were before the court from the beginning of the prosecution. Accordingly, the delays attributed to defen dant in connection with the second-degree-murder charges

also applied to the first-degree-murder charges, and the speedy-trial term had not yet expired when the State filed the second indictment. Izquierdo-Flores , 332 Ill. App. 3d at 639. Thus, Williams does not change the outcome of this case, and I see no re ason to modify our previous ruling.No. 2--04--0515

- 19 - GUILTY PLEA Because I would not reverse defendant's conviction in light of Williams , I also address defendant's three remaining contentions. With respect to his guilty plea to second-degree murder, defendant first argues that the

trial court abused its discretion by failing to accept his plea. Second, defendant a rgues that his counsel was

ineffective for failing to obtain a ruling on his guilty -plea offer on January 16, 2001 . A review of the facts

reveals that both arguments lack merit. On January 16, 2001, the State m oved to file first-degree-murder charges and dismiss the seconddegree-murder charges. That same day, defense counsel informed the court that defendant was prepared to offer

a "straight open plea" to the pending second-degree-murder charges. The court reserved ruling on the State's motion, because the State planned to present the first-degree-murder charges to a grand jury the next day. In

addition, the court expressed concern regarding defendant's speedy-trial right s, noting that a speedy-trial demand had been filed on September 7, 2000. Accordingly, th e court continued the case until January 18, so that

both parties would be prepared to address the speedy-trial issues that arose in response to the State's motion. On January 18, defendant moved to dismiss the indict ment charging first-degree murder, and the court heard arguments on January 25. On January 29, the court granted defendant's motion to dismiss the firstdegree-murder charges. Defendant then sought leave to en ter his guilty plea to second-degree murder. The court reserved ruling on the plea until the State decided whether it wished to appeal the order granting defendant's motion to dismiss the first-degree-murder charges. The court st ated that, while it was not precluding defendant from

entering a guilty plea, it would reserve "actually taking it." On February 5, the State advised the court that it would appeal its decision. On that date, defendant again offered a "straight open plea" to the pending seconddegree-murder charges. The court reserved ruling. On February 8, the State's motion to reconsider was denied, and the State was given leave to file a certifica te of impairment and a notice of appeal. Defendant sought release pending appeal, under Supreme Court Rule 604(a)(3) (188 Ill. 2d R. 604(a)(3)), arguingNo. 2--04--0515

- 20 - that he had tried to plead guilty to second-degree murder , but had not been allowed to do so. The court denied

defendant's motion for release, finding compelling reasons to hold him on bond. It is within the trial court's sound discretion to a ccept or reject a guilty pl ea. People v. Peterson , 311 Ill. App. 3d 38, 45 (1999). We re view the court's decision for an abuse of discretion, and we will not substitute our judgment for that of the trial court. Peterson , 311 Ill. App. 3d at 45. An abuse of

discretion occurs when no reasonable person would agree with the decision, when the decision is arbitrary,

unreasonable, or unconscionable, or when the decision is no t based on facts, logic, or reason. Peterson , 311 Ill. App. 3d at 45. Based on all of the facts present in this case, the tri al court did not abuse its discretion in refusing to accept defendant's guilty plea. There is no absolute right to have a guilty pl ea accepted by the trial court. People
v. Henderson , 211 Ill. 2d 90, 103 (2004). Moreover, as the State points out, defendant's plea

offers were not made following a negotia ted plea agreement. While the partie s had engaged in plea negotiations over several months, it was not until the State announc ed its intention to file first-degree-murder charges that

defendant offered a "straight open plea" to the pendin g second-degree-murder charges. The trial court was not

obligated to accept the plea so that defendant could a void being charged with first-degree murder. This is because

"a person can be prosecuted for the greatest offenses viola ted by his conduct," and a def endant may not attempt to

eliminate this option of the State. People v. Fernetti , 117 Ill. App. 3d 44, 52 (1983), rev'd on other

grounds , 104 Ill. 2d 19 (1984). There is "no rationale which suggests that the legislature intended to

create a statutory right requiring the acceptance of a proffered plea of guilty as to a charge chosen by defendant." (Emphasis added.) Fernetti , 117 Ill. App. 3d at 52. In reserving its ruling on defendant's guilty plea offers, the trial court was attempting to strike a balance between defendant's speedy-trial rights and the State's right to prosecute defenda nt on first-degree-murder charges. Once the court granted defendant's motion to dismiss the second indictme nt charging first-degreeNo. 2--04--0515

- 21 - murder, and the State decided to appeal that decision, it a ppears that the trial court delayed the proceedings on the

second-degree-murder charges until the appeal was resolved. Given the uncertainty of the outcome on appeal,

coupled with the fact that defendant co uld not attempt to eliminate the State's option of charging him with firstdegree murder by pleading guilty to second-degree murder, I cannot say that the trial court abused its discretion in

refusing to accept defendant's guilty plea. Defendant next maintains that his counsel was ineffe ctive for failing to obtain a ruling on defendant's

"straight open plea" to the second-degree-murder charges on January 16, 2001. According to defendant,

defense counsel failed to obtain a ruling on the plea offer and acquiesced in a two-day continuance during which the State obtained an indictment charging first-degree murder. Claims based on the ineffective assistance of counsel are analyzed under the test established in Strickland v. Washington , 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Graham , 206 Ill. 2d 465, 476 (2003). "Under Strickland , a defendant must prove that defense counsel's performanc e fell below an objective standard of reasonableness and that this substandard performance creat ed a reasonable probability that, but for counsel's error, the result of the proceeding would have been different." Graham , 206 Ill. 2d at 476. A reasonable probability means a probability sufficient to undermine confidence in the resu lt of the trial. Graham , 206 Ill. 2d at 476 . The defendant must satisfy both parts of the Strickland test in order to establish that he received ineffective assistance. Graham , 206 Ill. 2d at 476. T hus, if the defendant suffered no prejudice, we need not consider whether counsel's performance was deficient. Graham , 206 Ill. 2d at 476. Defendant fails to establish ei ther prong of the Strickland test. Defense counsel provided effective assistance when he offered a "straight open plea" to the second-degreemurder charges upon learning that the State intended to file fi rst-degree-murder charges.No. 2--04--0515

- 22 - As stated previously, the trial court was not obligated to accept defenda nt's "straight open plea." Indeed, the court reserved ruling on defendant's offer, as well as the State's motion to dismiss the second-degree-murder charges and file first-degree-murder charges, in an effort to protect defendant's speedy-trial rights. De fendant cites no authorit y for the proposition that defense counsel should hav e tried to "force" a ruling when the court specifically continued the case so that the par ties could prepare arguments. Following the two-day

continuance, defense counsel moved to dismiss the indict ment charging first-degree mur der. Once the trial court

granted this motion, defense counsel agai n sought leave to enter defendant's guilty plea to second-degree murder. In fact, defense counsel renewed defendant's plea o ffer on three separate occasions prior to the court denying the State's motion to recons ider. Pending the State's decision to appeal, the court indicated t hat, while it was not precluding defendant from entering a guilty plea, it would reserve

"actually taking it." Accordingly, defense counsel's conduct fell within the wide range of reasonable professional assistance and constitu ted sound trial strat egy. See People v. Makiel , 358 Ill. App. 3d 102, 106 (2005) (the defendant must overcome a "strong presumption" that his lawyer's conduct falls wit hin the wide range of re asonable professional assistance and that the challenged conduct constitutes sound trial strategy). ADDITIONAL DAY OF CREDIT Defendant also argues that he is entitled to an additi onal day of credit against his sentence. Because it is

not clear from the record whether defendant is entitled to one day's credit, I would remand with instructions that

the trial court make this determination. As a final matter, I question the procedural propriety of vacating def endant's conviction and remanding the case on the second-degree-murder charges. On remand, the trial court specific ally rejected defendant's

arguments regarding second-degree murder and instead fou nd defendant guilty of first-degree murder. BecauseNo. 2--04--0515

- 23 - defendant has already been tried and convicted of first- degree murder, I am not convinced that the case law cited

by the majority supports remanding th e case on the second-degree-murder cha rges. In any event, I would affirm

defendant's conviction of first-degree murder.