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

_________________________________________________________________________

_____ 

 

 IN THE 

 APPELLATE COURT OF ILLINOIS 

 SECOND DISTRICT 

_________________________________________________________________________

_____ 

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. 

_________________________________________________________________________

_____ 

JUSTICE McLAREN delivered the opinion of the court: 

After admitting that he strangled his aunt, defendant, Carlos Izquierdo-Flores, was 

charged by indictment with second-degree murder (720 ILCS 5/9--2(a)(1), (a)(2) (West 

2000)). More than 120 days after defendant filed a speedy-trial demand on the original 

second-degree-murder charges, the State filed a second indictment charging first-degree 

murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 2000)). Relying on speedy-trial and 

compulsory-joinder principles, defendant moved to dismiss the second indictment, and the 

trial court granted his motion based upon the speedy-trial claim. 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. 
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 Defendant appeals, arguing that: (1) we should reconsider 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 guilty 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 first 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 preceding the first appeal in this case. On 

September 6, 2000, defendant was 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 September 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 date, forensic pathologist Dr. Nancy Jones 

performed an autopsy on Flores's body. The autopsy report, dated September 16, indicated 

that strangulation was the cause of death. 

On September 20, 2000, the State filed a two-count indictment 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. 
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Over the next several months, the parties agreed to several continuances and 

engaged in plea negotiations. During a January 16, 2001, hearing, the State sought leave to 

dismiss the second-degree-murder charges and file 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 the 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 opined on January 12, 2001, that the strangulation could 

not have been accomplished manually. Instead, she opined that the marks on the victim's 

neck were made by a ligature, such as a rope, belt, or piece of clothing. As a result, the 

State now intended to pursue first-degree-murder charges. Defense counsel objected to the 

new charges, noting that defendant had been in custody for months and was prepared to 

offer a "straight" plea to the second-degree-murder charges. The trial 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-count indictment charging firstdegree murder. The second indictment 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 granted this motion. In particular, the court found that the new 

charges arose from the same acts that gave rise to the original 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-
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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 motion 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 filed a certificate of impairment 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-degree-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, defendant argued that, although the second indictment 

did not add any new elements to the charged offense, it did place a burden on him that did 

not exist before. Izquierdo-Flores, 332 Ill. App. 3d at 637. Defendant pointed out that by 

charging him with second-degree murder, the State alleged that it could prove the elements 

of first-degree murder, but conceded the presence of mitigating factors. Izquierdo-Flores, 

332 Ill. App. 3d at 637. Thus, if the State were allowed to withdraw the second-degreemurder charges and charge him with first-degree 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-degree murder charges here do not require defendant to defend 

against any elements that were not before the trial court previously, allowing the State to 

proceed on the second indictment would not frustrate the purpose of the speedy-trial 
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statute." Izquierdo-Flores, 332 Ill. App. 3d at 639. Accordingly, the delays attributed to 

defendant in connection with the second-degree-murder charges applied to the first-degreemurder charges as well. Because the speedy-trial term had not expired when the State filed 

the second indictment, we held that the trial court erred by dismissing the second indictment. 

 Izquierdo-Flores, 332 Ill. App. 3d at 639. 

On remand, defendant was arraigned on three counts of first-degree murder. 

Pursuant to the State's motion, the trial court dismissed the second-degree-murder charges. 

 A bench trial commenced in January 2004, and defendant was found guilty of two counts of 

first-degree murder. Defendant filed a posttrial motion, which the trial court denied. The 

court sentenced defendant on only one count of first-degree murder, imposing a term of 30 

years' imprisonment. Defendant moved to reconsider his sentence, and the trial court 

denied that motion. Defendant's timely notice of appeal followed. 

ANALYSIS 

Defendant first argues that we should reconsider 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 speedy-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 compulsory-joinder statute 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 the law of the case doctrine 

bars review of this issue. While the State acknowledges 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 injustice (Bond Drug Co. v. Amoco Oil Co., 323 Ill. 
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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 relationship between the speedy-trial 

statute and the compulsory-joinder statute. There, the defendant was originally charged 

with one count of contributing to the criminal delinquency of a juvenile in connection with the 

murder of James Patterson. Williams, 204 Ill. 2d at 196. Then, 168 days after he was 

arrested on the contributing charge, the defendant was also charged with one count of firstdegree murder in connection with Patterson's death. Williams, 204 Ill. 2d at 196. The 

defendant contended that the State violated the speedy-trial act when it charged him with 

first-degree murder 168 days after it charged him 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, pretrial 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 application 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 charged 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) provides further that the 120-day period will be 

suspended during any delay occasioned by the defendant. 725 ILCS 5/103--5(f) (West 

2000). 
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The rule for determining the number of speedy-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 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. 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." 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 (Criminal 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 prosecution, except as provided in Subsection 

(c), if they are based on the same act. 
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(c) When 2 or more offenses are charged 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 the compulsory-joinder statute does not include 

independent acts constituting different offenses, and there is no requirement 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-trial statute should not be interpreted to 

require joinder that is not already 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 first appeal that the first-degree-murder charges 

were not new and additional charges, because the elements of first-degree murder and 

second-degree murder are identical. Izquierdo-Flores, 332 Ill. App. 3d at 638. Our decision 

in that case did not address the compulsory-joinder 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 first-degree-murder counts were not "new and 

additional charges," and that Williams therefore does not control the outcome of this case. 

Specifically, the State argues that the new first-degree-murder charges did not contain 
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substantial changes that altered the nature or the elements of the second-degree-murder 

charges. We disagree. 

Second-degree murder differs from first-degree murder because of the presence of a 

statutory mitigating factor such as a serious 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 before. A defendant charged with second-degree murder is not 

required to prove anything. People v. Golden, 244 Ill. App. 3d 908, 918 (1993). The State 

must prove all of the elements 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 second-degree murder, the defendant 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 were able to withdraw the second-degree-murder 

charges and charge him with first-degree murder, defendant would bear the burden of 

proving the presence of a mitigating factor, which places an additional issue before the trier 

of fact. First-degree murder is a more serious 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 assume 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 reasonable 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 a 
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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 for compulsory joinder 

stated in Williams: 

"If the initial and subsequent charges filed against the defendant are subject to 

compulsory joinder, delays attributable to the defendant on the initial charges are 

not attributable to the defendant on the subsequent 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 charges, 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 faced both charges. As Justice Kuehn 

presciently observed, 'All choices about requests that would delay proceedings 

would be made under a false understanding as a result of this deception.' When the 

State filed the more serious charges, the defendant would face a Hobson's choice 

between a trial without adequate preparation and further pretrial detention to 

prepare for trial. Today, we do not create a loophole for criminal defendants. 

Instead, we close a loophole which would allow the State to circumvent a statutorily 

implemented constitutional right." Williams, 204 Ill. 2d at 207. 

Moreover, the two cases relied upon by the 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 the crime, and the defendant had 

been in custody for over 120 days by the time the indictment was corrected). People v. 
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Doss, 347 Ill. App. 3d 418 (2004), on the other hand, concerned a formal rather than a 

substantive amendment to an indictment so that speedy-trial provisions were not 

implicated. See Doss, 347 Ill. App. 3d at 425-26 (the amendment of the indictment from 

"toy pistol" to "pistol" was formal and not substantive, because it did not alter the nature of 

the offense). 

The State also contends that Williams is distinguishable. According to the State, this 

case involves essentially the same crimes, first-degree murder and second-degree murder, 

while Williams involved multiple but factually related crimes that occurred at different times. 

We disagree. Like the case at bar, the contributing and murder charges in Williams were 

subject to compulsory joinder because they were 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 alternative 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 defendant on the contributing charge were not 

attributable to the defendant on the murder charge, and the State violated 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 centered upon whether felony 

driving under the influence (DUI) and misdemeanor 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 misdemeanor charges were based on the same act, 

they were required to be tried together, meaning that once the speedy-trial period expired on 
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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 charged 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 defendant 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 charging instrument from the prosecution's 

inception, and none of the numerous 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 discovery of new evidence. Instead, as we 

previously found, the delay was the result of the State's lack of diligence in investigating the 
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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 compulsory-joinder statute in 

Williams, we must reconsider our previous decision 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 strangling 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 subsequent 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-trial 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 initial decision was clearly 

erroneous and would work a manifest 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): "To '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 parties 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 court's judgment in the prior appeal 
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been affirmed, the case would have proceeded to trial on only the second-degree-murder 

charges. It is noteworthy that defendant claims that the trial court abused its discretion 

when it failed to accept his blind plea of guilty to the charge of second-degree murder, and 

he requests that we "remand the case to the trial 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 disposition 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 established 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, issues presented and disposed of in a prior 

appeal are binding and control in the trial court 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 of 
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the case doctrine is to protect settled expectations of the parties, ensure uniformity of 

decisions, maintain consistency during the course of a single case, effectuate proper 

administration of justice, and bring litigation 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 applicable 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 allows the reviewing court to depart from the doctrine of the 

law of the case if the court 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 charged defendant with first-degree murder. 

The speedy-trial period for the original second-degree-murder charges also applies to 

the first-degree-murder charges only if the first-degree-murder charges are "new and 

additional charges" that are subject 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. 
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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 Criminal Code of 1961, which defines the offense of seconddegree murder, provides that "[a] person commits 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 ILCS 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 murder both require the same mental 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 murder. See 27 J. Marshall L. 

Rev. at 114. 

In People v. Jeffries, 164 Ill. 2d 104 (1995), our supreme court made clear that 

second-degree murder is not a lesser included offense 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 offense or that the 
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defendant acted with a less culpable 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 reduce first-degree murder to second degree 

murder." (Emphasis in original.) People v. Kauffman, 308 Ill. App. 3d 1, 10 (1999). 

Indeed, second-degree murder differs from first-degree murder only because of the 

presence of a statutory mitigating factor, such as a serious provocation or an unreasonable 

belief in justification. People v. Porter, 168 Ill. 2d 201, 213 (1995). However, mitigating 

factors are not elements of second-degree murder; they exist merely to mitigate one's 

culpability and to lessen the resulting sentence imposed. See D. Sternicki, The Void Left in 

Illinois Homicide Law After People 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 factors are not elements of the offense but are affirmative defenses that 

do not bear upon the ultimate burden of proof). Because second-degree murder does not contain different 

elements from first-degree murder, the second 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 first-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. As 
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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 the State's evidence could establish 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 essentially 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 joinder statute was not implicated, and Williams is inapplicable. Unlike 

the case at bar, which turns on the unique relationship between first- and second-degree murder, Williams clearly 

involved "new and additional charges." There, the defendant was charged with first-degree murder 168 days 

after he was charged with contributing to the criminal delinquency of a juvenile. Williams, 204 Ill. 2d at 

196. Because first-degree murder was clearly a "new and additional charge" that was based on the same act 

and therefore subject to compulsory joinder, 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 first-degree-murder charges were before the court from the beginning of the 

prosecution. Accordingly, the delays attributed to defendant 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 reason to modify our previous ruling. 
No. 2--04--0515 

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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 argues 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 moved 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 rights, noting that a speedy-trial demand 

had been filed on September 7, 2000. Accordingly, the 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 indictment 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 enter 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 stated 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 certificate 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)), arguing 
No. 2--04--0515 

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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 accept or reject a guilty plea. People v. Peterson, 311 

Ill. App. 3d 38, 45 (1999). We review 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 not based on facts, logic, or reason. Peterson, 311 

Ill. App. 3d at 45. 

Based on all of the facts present in this case, the trial court did not abuse its discretion in refusing to 

accept defendant's guilty plea. There is no absolute right to have a guilty plea 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 negotiated plea agreement. While the parties had engaged in plea negotiations 

over several months, it was not until the State announced its intention to file first-degree-murder charges that 

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

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

"a person can be prosecuted for the greatest offenses violated by his conduct," and a defendant 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 defendant on first-degree-murder 

charges. Once the court granted defendant's motion to dismiss the second indictment charging first-degree 
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murder, and the State decided to appeal that decision, it appears 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 could 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 ineffective 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 performance fell below an objective standard of 

reasonableness and that this substandard performance created 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 result 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. Thus, 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 either 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 first-degree-murder charges. 
No. 2--04--0515 

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As stated previously, the trial court was not obligated to accept defendant'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. Defendant cites no authority for the proposition 

that defense counsel should have tried to "force" a ruling when the court specifically 

continued the case so that the parties could prepare arguments. Following the two-day 

continuance, defense counsel moved to dismiss the indictment charging first-degree murder. Once the trial court 

granted this motion, defense counsel again sought leave to enter defendant's guilty plea to second-degree murder. 

In fact, defense counsel renewed defendant's plea offer on three separate occasions prior to 

the court denying the State's motion to reconsider. Pending the State's decision to appeal, 

the court indicated that, 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 constituted sound trial strategy. See People v. 

Makiel, 358 Ill. App. 3d 102, 106 (2005) (the defendant must overcome a "strong 

presumption" that his lawyer's conduct falls within the wide range of reasonable professional 

assistance and that the challenged conduct constitutes sound trial strategy). 

ADDITIONAL DAY OF CREDIT 

Defendant also argues that he is entitled to an additional 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 defendant's conviction and remanding the 

case on the second-degree-murder charges. On remand, the trial court specifically rejected defendant's 

arguments regarding second-degree murder and instead found defendant guilty of first-degree murder. Because 
No. 2--04--0515 

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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 the case on the second-degree-murder charges. In any event, I would affirm 

defendant's conviction of first-degree murder.