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The People of the State v. Michael P. Bald

October 5, 2011

THE PEOPLE OF THE STATE
PLAINTIFF-APPELLEE,
v.
MICHAEL P. BALD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court OF ILLINOIS, of Stephenson County. No. 07-CF-94 PHILLIP M. SHIPP, Honorable Judge, Presiding.

The opinion of the court was delivered by: Justice Birkett

Unpublished opinion

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

Presiding Justice Jorgensen and Justice Hudson concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Phillip M. Shipp, appeals from his conviction of possession of more than 1 gram but less than 15 grams of cocaine with intent to deliver within 1,000 feet of a church (720 ILCS 570/401(c)(2) (West 2000); 720 ILCS 570/407(b)(1) (West 2006)), a Class X felony. He contends that his trial counsel was ineffective for failing to move to discharge on speedy-trial grounds when the State was allowed to amend the information, which previously cited the Class 1 felony provision for possession with intent to deliver (720 ILCS 570/401(d) (West 2000); 720 ILCS 570/407(b)(2) (West 2006)). He contends that the amendment was a material change that charged a new offense.

The State contends that the speedy-trial provisions were not implicated because the amendment was formal to correct a miswriting. We agree that the amendment was formal. Accordingly, we affirm.

¶ 2 I. BACKGROUND

¶ 3 In the early morning hours of April 21, 2007, officers executed a search warrant at Shipp's home. Shipp was not home at the time. Inside, they found 0.1 grams of cocaine, a scale, a baggie corner with powder residue, baggies without corners, and 20.3 grams of cannabis. No paraphernalia for consuming drugs was found. The house was within 1,000 feet of a church.

¶ 4 Shipp arrived home shortly after, and officers approached him. According to one officer, Shipp tossed an item that resembled a golf ball in a sandwich bag, and two pieces of paper also floated to the ground. Another officer did not see Shipp throw anything, but did not have Shipp's hands in view at all times. A neighbor who was watching from his kitchen window did not see Shipp throw anything. The general area was one in which there were a lot of drug sales. After a struggle, Shipp was handcuffed, and the officers then found two $20 bills and 12 grams of cocaine in a baggie nearby on the ground. Shipp had $416 in one pants pocket and $363 in another.

¶ 5 Shipp was taken into custody on April 21, 2007. He was initially charged by complaint with possession of a controlled substance with intent to deliver under section 407(b)(2). He also was charged with possession of cannabis (720 ILCS 550/4(c) (West 2006)) and resisting a peace officer (720 ILCS 5/31-1 (West 2006)). On May 17, 2007, he was charged with the same offenses by information. The section 407(b)(2) charge alleged that, on April 21, 2007, while within 1,000 feet of a church, Shipp "knowingly possessed with intent to deliver to another person in violation of 570/401(c) more than 1 gram but less than 15 grams of a substance containing cocaine, a controlled substance."

¶ 6 At the arraignment, John Vogt was present for the State, and David Vella was representing Shipp. The following colloquy occurred:

"THE COURT: Now, Mr. Vogt, you might wanna examine your charging document, 'cause the charging document reads different than the-the-the wording is different than the charge itself. 4-407(b)(2) [sic] refers to an amount less than-less than a gram.

MR. VELLA: I'm okay with that.

THE COURT: What?

MR. VELLA: I'm okay with that. We ...


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