People v. Kelly

No. 3--96--0351
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 93--CF--5255
)
OLLIE KELLY, ) Honorable
) Barbara Badger,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________

After a bench trial, defendant, Ollie Kelly, was convicted
of four counts of hate crime (720 ILCS 5/12--7.1 (West 1994)).
The trial court vacated one count and sentenced defendant to 30
months of probation on the remaining three counts. On appeal,
defendant contends: (1) his convictions must be reversed because
he was denied a preliminary hearing; or, alternatively, (2) his
conviction on count IV of the information must be vacated because
it violates the one-act-one-crime principle. For the reasons
that follow, we reverse defendant's convictions and remand his
cause for further proceedings.
On July 20, 1994, a grand jury returned a two-count
indictment against defendant. Count I of the indictment alleged
that on November 23, 1993, defendant committed a hate crime by
committing an assault (720 ILCS 5/12--1 (West 1992)) against S.A.
by reason of her race. Count I further alleged that defendant
committed the assault by pointing his finger at S.A. and
threatening to kill her. Count II of the indictment alleged that
on October 24, 1993, defendant committed a hate crime by
committing disorderly conduct (720 ILCS 5/26--1(a)(1) (West
1992)) by reason of S.A.'s race. Specifically, count II alleged
that defendant grabbed his genitals and told S.A. to place her
mouth on his penis.
On January 22, 1996, the parties informed the court that
they were ready for trial. On the same day, defendant waived his
right to a jury. The trial court continued the case for a bench
trial to commence the following day.
On January 23, 1996, the trial court called defendant's
cause for trial. At this point, the State requested leave to
dismiss the two-count indictment and file a seven-count
information. Defendant objected to the State's motion and asked
that the case proceed to trial on the two-count indictment.
Defendant argued that the information charged different offenses
than the indictment, entitling him to a preliminary hearing. The
State argued that the information merely charged the same
offenses in different ways and that no preliminary hearing was
necessary.
The trial court granted the State's motion. The trial court
ruled that section 109--3.1(b)(2) of the Code of Criminal
Procedure of 1963 (the Code) (725 ILCS 5/109--3.1(b)(2) (West
1992)) allowed the State to file the information without
affording defendant a preliminary hearing because the charges of
the information arose out of the same transaction or conduct
which provided the basis for the earlier indictment.
The State's seven-count information contained three counts
(counts V, VI, and VII) which charged crimes other than hate
crimes. Defendant moved for dismissal of these counts on the
ground that they were charged beyond the statute of limitations
for misdemeanors. The trial court granted defendant's motion to
dismiss.
The remaining four counts of the information alleged
defendant committed hate crimes on October 23 and November 23,
1993. Counts I and II contained the same allegations as the
earlier two-count indictment except that count I stated the
October offense and count II stated the November offense. In
addition, the date for the October offense was changed from
October 24 to October 23. Count III alleged that on November 23,
1993, defendant committed a hate crime by committing disorderly
conduct (720 ILCS 5/26--1(a)(1) (West 1992)) by reason of S.A.'s
race. In particular, count III alleged defendant pointed his
finger at S.A. and threatened to kill her in such an unreasonable
manner as to alarm and disturb S.A. and provoke a breach of the
peace. Count IV alleged that on November 23, 1993, defendant
committed a hate crime by committing disorderly conduct (720 ILCS
5/26--1(a)(5) (West 1992)) by reason of S.A.'s race.
Specifically, count IV alleged that defendant entered upon the
property of S.A., deliberately looked in her window, pointed his
finger at her and threatened to kill her in such an unreasonable
manner as to alarm and disturb S.A. and provoke a breach of the
peace.
The matter then proceeded to trial on the remaining four
counts of the information. The trial court found defendant
guilty on all four counts. The trial court vacated defendant's
conviction on count III, ruling that count III was based on the
same conduct as count II. Subsequently, defendant filed a motion
in arrest of judgment contending that the trial court erred in
allowing his trial to proceed without affording him a preliminary
hearing. The trial court denied defendant's motion.
On appeal, defendant contends the trial court erred by
allowing the State to dismiss a two-count indictment and file a
seven-count information immediately before trial without
affording him a preliminary hearing.
In Illinois, all felony prosecutions must be charged either
by information or by indictment. 725 ILCS 5/111--2(a) (West
1992). If the State charges a felony by information, the accused
is entitled to a preliminary hearing to determine whether
probable cause exists to believe the accused committed the
offense. 725 ILCS 5/111--2(a) (West 1992).
The trial court ruled that section 109--3.1(b)(2) of the
Code (725 ILCS 5/109--3.1(b)(2) (West 1992)) allowed the State to
file its information without affording defendant a preliminary
hearing because the charges of the information arose out of the
same transaction or conduct which provided the basis for the
earlier indictment. Section 109--3.1(b) requires that a person
in custody for the alleged commission of a felony is entitled to
a preliminary examination or indictment within 30 days of being
taken into custody, or, if on bail or recognizance, within 60
days. 725 ILCS 5/109--3.1(b) (West 1992). Section 109--
3.1(b)(2) provides that once a person is charged for an offense
for which he is taken into custody, the section 109--3.1(b)
limitations period does not apply to a subsequent indictment
charging additional offenses arising out of the same transaction
or conduct. 725 ILCS 5/109--3.1(b)(2) (West 1992). Thus,
section 109--3.1(b)(2) is an exception to the limitations period
for subsequent indictments, not a statutory authorization
obviating the need for a preliminary hearing when an information
is substituted for an indictment.
Having dispensed with the trial court's rationale for its
ruling, we now consider whether the trial court's judgment can be
sustained on another ground. See People v. Paarlberg, 243 Ill.
App. 3d 731, 612 N.E.2d 106 (1993). We turn first to the State's
argument that the trial court committed no error because the
charges of the information arose out of the same transaction or
conduct as those charged in the indictment. The State analogizes
to section 111--2(f) of the Code in support of its claim. 725
ILCS 5/111--2(f) (West 1992).
Section 111--2(f) allows the State to amend an information
to charge additional offenses arising out of the same transaction
or occurrence without a preliminary hearing. However, there is
no similar statutory provision permitting the State to alter the
substance of an indictment by filing an information without
affording the accused a right to a preliminary hearing. See
People v. Taylor, 153 Ill. App. 3d 710, 506 N.E.2d 321 (1987).
Therefore, the State's reliance on section 111--2(f) is
misconceived.
Next, the State contends that this court should construe the
State's information as an amendment to an indictment. The State
cites no authority to support the proposition that an information
can be considered an amended indictment. Moreover, even if an
information could be considered an amended indictment, the
information in this case would still be improper because it
substantively alters the charges included in the indictment.
Where a defendant is charged by indictment, the State may
not amend the indictment, except to cure formal defects. People
v. Kincaid, 87 Ill. 2d 107, 429 N.E.2d 508 (1981). If an
amendment is substantive, the State must either return to the
grand jury for a further indictment or file an information
followed by a preliminary hearing or obtain a waiver of a
preliminary hearing. People v. Cregar, 172 Ill. App. 3d 807, 526 N.E.2d 1376 (1988). An amendment is substantive if it alters an
essential element of the offense for which the accused was
indicted. People v. Patterson, 267 Ill. App. 3d 933, 642 N.E.2d 866 (1994).
In a prosecution for hate crime, the State must prove that
the accused committed one of the predicate offenses enumerated in
the statute "by reason of the actual or perceived race *** of
another individual ***." 720 ILCS 5/12--7.1(a) (West 1994). An
allegation that the accused committed one of the enumerated
predicate offenses is an essential element of a hate crime. See
In re B.C., 176 Ill. 2d 536, 680 N.E.2d 1355 (1997).
Here, defendant was indicted for one count of hate crime
based on disorderly conduct (720 ILCS 5/26--1(a)(1) (West 1992))
arising out of the events of October 23, 1993, and one count of
hate crime predicated on assault (720 ILCS 5/12--1 (West 1992))
based on the events of November 23, 1993. The State's
information added two counts of hate crime premised on two
variations of disorderly conduct (720 ILCS 5/26--1(a)(1),(5)
(West 1992)) related to the events of November 23. By the
addition of these predicate crimes, the State altered the
essential elements of the crimes for which defendant was
indicted. Accordingly, the allegations of the State's
information resulted in a substantive alteration of the
indictment. Therefore, defendant was entitled to a probable
cause determination, either by a further indictment or a
preliminary hearing on the information.
Finally, the State argues that defendant's convictions
should stand because he suffered no prejudice stemming from the
trial court's denial of his right to a preliminary hearing. The
State calls to our attention the trial court's vacatur of the
count III conviction and the State's confession of error on count
IV. By removing these convictions, defendant would stand
convicted of counts I and II which are essentially the same
charges that had been alleged in the indictment.
However, even assuming, arguendo, that the State is correct
in its assertion that defendant suffered no prejudice, the
disposition of this appeal would not change. In the case at bar,
defendant raised a timely, pre-trial objection, demanded a
preliminary hearing, and filed a timely motion in arrest of
judgment. Accordingly, defendant need not show he was prejudiced
by the deprivation of his right to a preliminary hearing. See
People v. Benitez, 169 Ill. 2d 245, 661 N.E.2d 344 (1996)
(showing of prejudice unnecessary when defendant objected to
charging instrument on second day of trial); People v. Thingvold
145 Ill. 2d 441, 584 N.E.2d 89 (1991) (where indictment or
information is attacked before trial, it must strictly comply
with pleading requirements of Code of Criminal Procedure); cf.
People v. Gilmore, 63 Ill. 2d 23, 344 N.E.2d 456 (1976)
(defendant raising challenge to charging instrument for first
time on appeal must show prejudice). Therefore, the State's
argument concerning lack of prejudice is unavailing.
In summary, we hold defendant was entitled to a preliminary
hearing on the State's information and his convictions must be
reversed. It should be noted that reversal of defendant's
convictions does not bar the State from retrying defendant on the
same charges after affording him a probable cause determination,
either by a grand jury or by a preliminary hearing.
As a final matter, defendant also contends that his
conviction on count IV of the State's information must be vacated
because it is based on the same conduct as count II and,
therefore, violates the one-act-one-crime principle. The State
confesses error on this point. We are in agreement with the
parties that defendant's conviction on count IV violates the one-
act-one-crime principle. See generally People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). However, due to our disposition
of the first issue raised on appeal, it is unnecessary to vacate
the conviction.
For the foregoing reasons, the judgment of the circuit court
of Will County is reversed and remanded for further proceedings.
Reversed and remanded.
HOLDRIDGE and LYTTON, J.J., concur.