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The People of the State of Illinois v. Michael Wells

March 9, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
MICHAEL WELLS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County 05 CR 7929 Honorable Clayton J. Crane, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice J. Gordon and Justice Howse concurred in the judgment and opinion.

OPINION

¶ 1 Michael Wells was found guilty of two counts of aggravated stalking and subsequently was sentenced to three years' imprisonment. On appeal, defendant argues that his convictions for aggravated stalking should be reduced to simple stalking because the State failed to charge the acts that constituted the aggravating factor within 120 days in violation of defendant's right to a speedy trial.

¶ 2 On March 11, 2004, Lakita Strawder and defendant appeared before the trial court to advance an emergency order of protection. The trial court entered a plenary order of protection for Strawder and her children against defendant, her estranged husband, continued until April 1, 2004. The conditions of the order of protection were published to the court. The judge asked defendant if he understood, he responded that he did, and the judge noted on the record, "Acknowledge receipt." The order of protection was initially entered under case number 04- 437243. However, a second order of protection was entered, stating at the top of the first page "Corrected Case # 04-437096." The second and third pages of the order of protection show the number 04-437243 crossed out and 04-437096 handwritten below it. The orders of protection were identical, except the case number. The plenary order of protection in case number 04-437096 was continued at subsequent court dates.

¶ 3 On April 13, 2004, in case number 04 CR 9190, defendant was charged by information with two counts of aggravated stalking. Count I alleged that defendant committed the offense of aggravated stalking

"in that HE, KNOWINGLY AND WITHOUT LAWFUL JUSTIFICATION, ON AT LEAST TWO SEPARATE OCCASIONS, PLACED LAKITA [STRAWDER] UNDER SURVEILLANCE, TO WIT: ON MARCH 11, 2004, [DEFENDANT] TELEPHONED LAKITA [STRAWDER] AND INDICATED THAT HE WAS WATCHING HER RESIDENCE, AND ON MARCH 12, 2004, [DEFENDANT] TELEPHONED LAKITA [STRAWDER] AND INDICATED THAT HE WAS WATCHING HER, AND [DEFENDANT] TRANSMITTED A THREAT TO LAKITA [STRAWDER] OF IMMEDIATE OR FUTURE BODILY HARM, TO WIT: ON MARCH 11, 2004, [DEFENDANT] THREATENED TO KILL LAKITA [STRAWDER], AND IN CONJUNCTION WITH COMMITTING THE OFFENSE OF STALKING, [DEFENDANT] VIOLATED AN ORDER OF PROTECTION UNDER CASE NUMBER 04-437243, IN VIOLATION OF CHAPTER 720, ACT 5, SECTION 12-7.4(A)(1) OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND Contrary to the Statute, and against the peace and dignity of the People of the State of Illinois."

¶ 4 Count II alleged that defendant committed the offense of aggravated stalking

"in that HE, KNOWINGLY AND WITHOUT LAWFUL JUSTIFICATION, ON AT LEAST TWO SEPARATE OCCASIONS, PLACED LAKITA [STRAWDER] UNDER SURVEILLANCE, TO WIT: ON MARCH 12, 2004 [DEFENDANT] WENT TO LAKITA [STRAWDER'S] RESIDENCE AND LEFT A NOTE ON HER MOTOR VEHICLE, AND ON MARCH 12, 2004, [DEFENDANT] WENT TO LAKITA [STRAWDER'S] RESIDENCE ARMED WITH A FIREARM AND DISCHARGED THAT FIREARM, AND [DEFENDANT] TRANSMITTED A THREAT TO LAKITA [STRAWDER] OF IMMEDIATE OR FUTURE BODILY HARM, TO WIT: ON MARCH 11, 2004, [DEFENDANT] THREATENED TO KILL LAKITA [STRAWDER], AND IN CONJUNCTION WITH COMMITTING THE OFFENSE OF STALKING, [DEFENDANT] VIOLATED AN ORDER OF PROTECTION UNDER CASE NUMBER 04-437243, IN VIOLATION OF CHAPTER 720, ACT 5, SECTION 12-7.4(A)(1) OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND Contrary to the Statute, and against the peace and dignity of the People of the State of Illinois."

¶ 5 In January 2005, defendant filed a "motion to dismiss charge pursuant to 725 ILCS 5/114-1." In the motion, defendant argued that the case number 04-437243 was stricken by the State and cannot be the basis for the charge of aggravated stalking.

¶ 6 On April 1, 2005, the State filed an indictment against defendant in the instant circuit court case number 05 CR 7929. The State charged defendant with two counts of aggravated stalking. Both counts are identical to the previously charged counts, except the alleged violated order of protection stated "case number 04-437096." The State then nol-prossed the first information in case number 04 CR 9190.

¶ 7 On July 22, 2005, defendant informed the trial court that he would like to represent himself. The trial court admonished defendant about proceeding pro se, but allowed defendant to represent himself. Defendant then made an oral motion to quash the indictment on speedy trial grounds. The trial court conducted a hearing on defendant's motion on August 31, 2005. At the hearing, defendant argued that the 13-month delay in filing the new indictment was "presumptively prejudicial" and that he was not "apprised with reasonable certainty of the precise offense in which he was charged, enabling the Defendant to prepare a proper defense." The State responded that the new indictment did not raise new facts, but instead "contained the exact words, exact same dates, exact same victim, everything, just changed the order of protection that was in effect." The trial judge found that the new indictment alleged the same facts as in the first charges and denied defendant's motion.

¶ 8 On September 22, 2005, defendant, now represented by counsel, filed a motion to reconsider defendant's motion to quash the indictment. Defendant argued that no valid order of protection was issued in case No. 04-437096 and the continuances under the previous case could not be charged against defendant. The State maintained that there were no new and additional charges alleged in the indictment and defendant was on notice of the charges against him. The State asserted that it was "a technical error of a number of an order of protection which was an incorrect error in the original indictment.[*fn1 ] And that was corrected by a reindict." At the October 2005 hearing on the motion to reconsider, the trial court denied the motion, finding that defendant was placed on notice as to the order of protection and defendant was informed "of the appropriate charges in order for him to defend himself in this case."

ΒΆ 9 In September 2007, defendant, represented by a new trial counsel, filed a motion to dismiss the indictment based on a violation of defendant's right to a speedy trial. At the hearing on the motion, defense counsel argued that the new indictment brought a new charge against defendant that was based upon a different order of protection. Defense counsel asserted that the new charges were subject to compulsory joinder and continuances on the original charges were not attributable to defendant under the new indictment. The State responded that the charges from the new indictment were not subject to compulsory joinder because the charges were based on the same facts and the only change was the number of the order of protection. The trial court found that the only difference between the two charging instruments is the number of the order of protection and "[t]here's no ...

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