People v. Shipp
| Decision Date | 05 October 2011 |
| Docket Number | No. 2–10–0197.,2–10–0197. |
| Citation | 2011 IL App (2d) 100197,958 N.E.2d 1128,354 Ill.Dec. 932 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Phillip M. SHIPP, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Thomas A. Lilien, Deputy Defender (Court-appointed), Mark G. Levine (Court-appointed), Office of the State Appellate Defender, Elgin, for Phillip M. Shipp.
John H. Vogt, Stephenson County State's Attorney, Freeport, Lawrence M. Bauer, Deputy Director, Barry W. Jacobs, State's Attorneys Appellate Prosecutor, for People.
[354 Ill.Dec. 934] ¶ 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.
¶ 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:
I'll admonish in regard to that then.”
¶ 7 The court then admonished Shipp that a violation of section 407(b)(2) was a Class 1 felony with a sentencing range of 4 to 15 years' incarceration, a period of mandatory supervised release, and a fine of up to $250,000. Vogt did not voice any concern about the language in the information or the admonitions. Shipp pleaded not guilty, and motions for discovery and a bond reduction were then discussed among the court and both of the attorneys.
¶ 8 Shipp remained in custody until January 25, 2008, when he was released on bond. In February 2009, he was arrested on other charges and, on February 5, 2009, he surrendered in exoneration of bond.
¶ 9 On February 2, 2009, the parties appeared, and the defense voiced concern that, since the State was basing the charge primarily on the cocaine found outside Shipp's home, the jury might become confused if items from inside the home were also allowed into evidence. Defense counsel also noted that the charge had been misworded from the beginning, and he stated that he assumed the State was going to try to prove possession of less than 1 gram under section 407(b)(2) on the basis of the 12 grams that were found outside the home. Defense counsel was concerned that, if the State were allowed to provide evidence of both amounts of cocaine found, the jury might determine that the amount outside was not shown beyond a reasonable doubt to belong to Shipp, but might convict because the amount inside did belong to him.
¶ 10 A different assistant State's Attorney, Joe Lentz, was present at the hearing, and Shipp was then represented by Byron Sloan. The following colloquy occurred:
¶ 11 Lentz again asked to amend the information, stating that he believed that the matter was a scrivener's error. The defense argued that it had faced a Class 1 charge the entire time and that the State could not enhance it simply by changing the statutory citation on the information.
¶ 12 The court noted that the State had been on notice of the matter and that the court had admonished Shipp on a Class 1 felony. But the court also stated that it found probable cause based on facts that would support the Class X felony. Over defendant's objection, the court allowed the amendment and admonished Shipp on the Class X charge, but noted that, because the class of the felony changed, it would allow a continuance. The citation to section 407(b)(2) was then changed on the information to section 407(b)(1).
¶ 13 Shipp was convicted and sentenced to 22 years' incarceration on the Class X charge. A motion to reduce sentence was denied, and Shipp appeals.
¶ 15 Shipp contends that his trial counsel was ineffective for failing to file a motion to discharge based on a violation of his speedy-trial rights because, when the information was amended, the same limitations period applied and continuances obtained on the original charge could not be attributed to him with respect to the new charge. He argues that the amendment was material because it altered an essential element of the offense. There is no dispute that, if Shipp is correct, he was not timely brought to trial.
¶ 16 A claim of ineffective assistance of counsel is reviewed according to the two-prong, performance-prejudice test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). People v. Boyd, 363 Ill.App.3d 1027, 1034, 301 Ill.Dec. 56, 845 N.E.2d 921 (2006). “To obtain relief under Strickland, a defendant must prove that defense counsel's performance fell below an objective standard of reasonableness and that this substandard performance caused prejudice by creating a reasonable probability that, but for counsel's errors, the trial result would have been different.” Id.
¶ 17 “ ‘An attorney's failure to seek discharge of his client on speedy-trial grounds generally will be deemed ineffective assistance of counsel if there is a reasonable probability that the defendant would have...
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