THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS DAVIS, Defendant-Appellant, 373 Ill. App. 3d 351

PRESIDING JUSTICE McBRIDE delivered the opinion of the court: Following a bench trial, defendant, Dennis Davis, was convicted of criminal sexual assault (720 ILCS 5/12 — 13(a)(1) (West 2002)) and sentenced to 30 years’ imprisonment. On appeal, defendant contends that his counsel was ineffective for failing to move to dismiss a portion of his indictment on the basis that it violated his speedy trial rights. In addition, defendant contends that he was denied his constitutional right to testify at trial.

The evidence adduced at trial demonstrated that, in March 2002, defendant sexually assaulted the victim, S.R., who was his fiancee’s daughter. On June 11, 2002, the victim reported the incident and defendant was arrested. The following day, on June 12, 2002, defense counsel filed a demand for trial at defendant’s initial court appearance. On July 3, 2002, the State charged defendant by information with criminal sexual assault, a Class 1 felony (720 ILCS 5/12 — 13(a)(1) (West 2002)). The case was then continued several times by agreement of the parties between July 23, 2002, and November 26, 2002.

Prior to commencement of trial, on October 25, 2002, a grand jury convened and returned a two-count indictment, where each count was based on the same act with the same victim. The first count realleged defendant’s original charge (count I), and the second count alleged criminal sexual assault against the same victim enhanced as a Class X felony based on a prior conviction for criminal sexual assault (720 ILCS 5/12 — 13(a)(1) (West 2002)) (count II).

Section 12 — 13 of the Criminal Code of 1961 provides, in relevant part: “(

a) The accused commits criminal sexual assault if he or she: (1) commits

an act of sexual penetration by the use of force or threat of force; or ij: ❖ % (

b) Sentence.

(1) Criminal sexual assault is a Class 1 felony.

(2) A person who is convicted of the offense of criminal sexual assault as defined in paragraph (a)(1) or (a)(2) after having previously been convicted of the offense of criminal sexual assault, or who is convicted of the offense of criminal sexual assault as defined in paragraph (a)(1) or (a)(2) after having previously been convicted under the laws of this State or any other state of an offense that is substantially equivalent to the offense of criminal sexual assault, commits a Class X felony for which the person shall be sentenced to a term of imprisonment of not less than 30 years and not more than 60 years.

The commission of the second or subsequent offense is required to have been after the initial conviction for this paragraph (2) to apply.” 720 ILCS 5/12 — 13(a)(1), (h)(1), (b)(2) (West 2002). At trial, several individuals, including the victim, testified to the facts underlying the instant offense. In addition, an assistant State’s Attorney (ASA) read a statement into the record, which was given by defendant in relation to his prior conviction. Defendant did not testify. The trial court ultimately found defendant guilty of both counts.

Defendant was subsequently sentenced to a 30-year prison term on count II, and count I, as the lesser count, merged therein. This appeal followed. Defendant first contends that his counsel was ineffective for failing to move to dismiss his enhanced charge of criminal sexual assault based on a prior conviction because it violated his speedy trial rights. The State responds that, because there was no basis for such a motion to dismiss, defendant received effective assistance.

To successfully allege ineffective assistance of counsel, the defendant must prove that his counsel’s performance was both objectively deficient and prejudicial. People v. Smith, 195 Ill. 2d 179, 187-88 (2000), citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). Ineffective assistance will be found where counsel failed to move to dismiss based on a speedy trial violation when there is “at least a reasonable probability that the client would have been discharged had a timely motion been filed.” People v. Garcia, 251 Ill. App. 3d 473, 478-79 (1993).

Accordingly, there must be legal grounds for the motion to dismiss in order to constitute ineffective assistance. Garcia, 251 Ill. App. 3d at 479. Pursuant to

section 103 — 5 of the Code of Criminal Procedure of 1963, a defendant in custody must be tried within 120 days from the date he was taken into custody, “unless delay is occasioned by the defendant.” 725 ILCS 5/103 — 5(a) (West 2002). If a defendant in custody is not tried within the 120-day period, he must be discharged. See 725 ILCS 5/103 — 5(d) (West 2002). However, prior to trial, the defendant must make a written motion for discharge based on violation of his speedy trial rights to avoid waiver. People v. Pearson, 88 Ill. 2d 210, 216-17 (1981).

The speedy trial period is tolled when the defendant contributes to or causes a delay of the trial. People v. Hall, 194 Ill. 2d 305, 326-27 (2000); see 725 ILCS 5/103 — 5(a) (West 2002). Continuances, where defense counsel has affirmatively agreed and has not reasserted his demand for trial, will toll the speedy trial term. See People v. Andrade, 279 Ill. App. 3d 292, 296-98 (1996); see also 725 ILCS 5/103 — 5(a) (West 2002). In the instant case, defendant has failed to demonstrate that he received ineffective assistance of counsel.

Defendant argues that count II violated his speedy trial rights, and he supports his argument with the rules announced in People v. Williams, 94 Ill. App. 3d 241 (1981), and People v. Gooden, 189 Ill. 2d 209 (2000). In Williams, the defendants were originally charged with rape and deviate sexual assault. Then on the 120th day of the speedy trial term, the State filed nine new charges for aggravated kidnaping, kidnaping, aggravated battery, and unlawful restraint, all of which arose from the same set of circumstances as the original charges. Williams, 94 Ill. App. 3d at 248.

On appeal, the defendants argued that any continuances obtained prior to the filing of the new charges cannot be attributed to the new charges when computing the speedy trial term. Williams, 94 Ill. App. 3d at 248. The Williams court agreed and concluded that when a “new and additional” charge arises from the “same facts” as the original charge, of which the State was always aware, the charges share the same speedy trial period. Williams, 94 Ill. App. 3d at 248-49.

Further, delays in prosecution of the original charge cannot be attributed to the defendant in connection with the “new and additional” charges because those new charges were not before the court when the continuances were obtained. Williams, 94 111. App. 3d at 248-49. The reviewing court held that the defendant’s speedy trial rights were violated as to those nine new and additional charges. Williams, 94 Ill. App. 3d at 249.

In Gooden, the supreme court limited the Williams rule to situations where the later-filed charge is based on the “same act” as the originally filed charge, such that the charges would need to be brought in a single prosecution pursuant to principles of compulsory joinder. Gooden, 189 Ill. 2d at 218-20. The compulsory joinder provision of the Criminal Code of 1961 states: “(

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. (

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.” 720 ILCS 5/3 — 3 (West 2002). In Gooden, the supreme court pointed out that “[ojnce a defendant has been prosecuted for an offense, the State is barred from prosecuting him or her for any other offense which, pursuant to

section 3 — 3(b), should have been joined with the original prosecution.” Gooden, 189 Ill. 2d at 219; see also 720 ILCS 5/3 — 4(b)(1) (West 2002). The supreme court also noted that in enacting the compulsory joinder provision, the legislature attempted to alleviate the fundamental unfairness that results when the State holds repeated trials for the same illegal conduct, a practice which had troubled the conscience of the courts and the legislature. Gooden, 189 Ill. 2d at 219.

The supreme court continued by stating that “the fact that multiple offenses arise from distinct, but related, acts in the course of a single incident is irrelevant for purposes of compulsory joinder.” Gooden, 189 Ill. 2d at 219. “Indeed, this court has acknowledged that ‘[tjhere is no requirement of joinder where multiple offenses arise from a series of related acts.’ ” Gooden, 189 Ill. 2d at 219, quoting People v.

Mueller, 109 Ill. 2d 378, 385 (1985). “This is so because the compulsory joinder provision was not ‘intended to cover the situation in which several offenses — either repeated violations of the same statutory provision or violations of different provisions — arise from a series of acts which are closely related with respect to the offender’s single purpose or plan.’ ” Gooden, 189 Ill. 2d at 219, quoting Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments — 1961, at 102 (Smith-Hurd 1972).

Therefore, independent, overt acts that constitute different offenses are not required to be joined because they are not offenses based on the same act. Gooden, 189 Ill. 2d at 219-20. In Gooden, the defendant was originally charged with home invasion, and 217 days later, the State later added a charge of aggravated criminal sexual assault. Gooden, 189 Ill. 2d at 216. In that case, the defendant entered the residence of his ex-wife and hit her in the head with the gun. Gooden, 189 Ill. 2d at 212. Later that day, the defendant told his ex-wife that he would let her go to the hospital, but he changed his mind.

He pulled a knife on her and told her to remove her clothing before he forced her to have sexual intercourse. Gooden, 189 Ill. 2d at 213. The Gooden court ruled that the home invasion and sexual assault charges were based on separate acts and, accordingly, compulsory joinder did not require the State to prosecute these charges together. Therefore, the speedy trial term applicable to the home invasion charge did not apply to the sexual assault charge. Gooden, 189 Ill. 2d at 220.

However, because the State permissively joined the home invasion and sexual assault charges, the supreme court considered the defendants’ speedy trial claim but ultimately concluded that the defendant was not denied a speedy trial on the sexual assault charge. Gooden, 189 Ill. 2d at 220-21. Here, defendant argues that his counsel should have moved to dismiss count II because it was brought after the expiration of the 120-day period commencing when he was originally charged on July 3, 2002, and it was based on the same act as count I.

Section 111 — 3(

c) of the Code of Criminal Procedure provides: “When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial.

For the purposes of this Section, ‘enhanced sentence’ means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in

Section 5 — 5—1 of the ‘Unified Code of Corrections’, approved July 26, 1972, as amended; it does not include an increase in the sentence applied within the same level of classification of offense.” 725 ILCS 5/111 — 3(c) (West 2002). We conclude that defendant’s right to a speedy trial was not violated in this case. We also conclude that the principles of compulsory joinder do not apply in this case because defendant was not charged with a “new and additional” offense. First, we point out that the actual charges, counts I and II, both allege the same offense, criminal sexual assault; and defendant was charged under the same

section of the Criminal Code of 1961, specifically

section 12 — 13(a)(1) (720 ILCS 5/12 — 13(a)(1) (West 2002)) for each count. The only difference between the counts is in the sentencing provision of the section; under

section (b)(1), count I is a Class 1 felony, and under

section (b)(2), count II is a Class X felony with special sentencing provisions. 720 ILCS 5/12 — 13(b)(1), (b)(2) (West 2002). Second, we hold that the State was not adding a new charge of criminal sexual assault, but was seeking an enhanced sentence based on defendant’s prior conviction. As

section 111 — 3(

c) states, a prior conviction is not an element of the offense. Absent the inclusion of a prior conviction, count II alleges the same facts as count I. Because count II does not allege any new elements arising from the sexual assault of S.R. that a new and additional charge would allege, there is no new charge. Under

section 111 — 3(c), count II is a request for an enhanced sentence, which the legislature has defined as a “sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense.” 725 ILCS 5/111 — 3(c) (West 2002). Further, the notice to defendant is not at issue when the additional information to a charge is a prior conviction because defendant is presumably aware of his prior conviction. See People v. Watson, 322 Ill. App. 3d 164, 167 (2001) (observing with regard to the recidivism exception in Apprendi v. New Jersey, 530 U.S. 466, 147 L.

Ed. 2d 435, 120 S. Ct. 2348 (2000), that “the rights of fair notice, proof beyond a reasonable doubt, and a jury trial inherent in due process have already been met with regard to [prior] convictions”); see also Jones v. United States, 526 U.S. 227, 249, 143 L. Ed. 2d 311, 329-30, 119 S. Ct. 1215, 1227 (1999). Further support for our conclusion that count II is not a new and additional charge can be found in People v. DiPace, 354 Ill. App. 3d 104 (2004).

In that case, “the fact of defendant’s prior convictions of driving under the influence, along with the fact that his license was revoked for driving under the influence, was used to raise the level of his conviction from a Class A misdemeanor of driving under the influence (625 ILCS 5/11 — 501(c) (West 2002)), to a Class 2 felony (625 ILCS 5/11 — 501(c—1)(3) (West 2002)).

The fact that defendant’s license was revoked for driving under the influence, along with the fact that defendant had been previously convicted of driving while his license was revoked, was used to raise the level of his conviction from a Class A misdemeanor of driving while license revoked (625 ILCS 5/6 — 303(a) (West 2002)), to a Class 4 felony (625 ILCS 5/6 — 303(d) (West 2002)).” DiPace, 354 Ill. App. 3d at 114.

The defendant asserted that “in order to be convicted of Class 2 felony driving under the influence of alcohol or Class 4 felony driving while his license was revoked, the State was required to prove beyond a reasonable doubt, as an element of each crime at trial, that the aggravating factors were present.” DiPace, 354 Ill. App. 3d at 114. The reviewing court disagreed and held that the State was not required to prove the defendant’s prior convictions as an element of the offense. DiPace, 354 Ill.

App. 3d at 114. “The existence of these predicate offenses is used after a defendant’s conviction to increase the classification of his crime at sentencing.” DiPace, 354 Ill. App. 3d at 114, citing People v. Thompson, 328 Ill. App. 3d 360, 364-66 (2002). The DiPace court noted that “requiring the State to prove the grounds for a conviction or revocation beyond a reasonable doubt at trial would effectively require the State to prove a prior conviction as an element of the crime, which would contravene the plain language of

section 111 — 3(

c) of the Code of Criminal Procedure of 1963.” DiPace, 354 Ill. App. 3d at 115; see also People v. Bowman, 221 Ill. App. 3d 663 (1991) (finding that under

section 111 — 3(c), the State was not required to show the defendant’s prior convictions until sentencing). As the holding in DiPace shows, prior convictions are not considered as an element of the offense and only come into play at sentencing. Moreover, the cases relied on by defendant do not relate to the precise issue before this court — the amendment of defendant’s charging instrument to seek an enhanced sentence based on a prior conviction. In Williams, on the 120th day of the term, the State added nine new charges from the same set of facts as the original charges.

These “new and additional” charges included three counts of aggravated kidnaping, three counts of kidnaping, two counts of aggravated battery, and one count of unlawful restraint. Williams, 94 Ill. App. 3d at 248. In Gooden, because the home invasion and sexual assault charges were based on separate acts, the compulsory joinder statute did not require the State to prosecute both offenses in the same proceeding. Gooden, 189 Ill. 2d at 220. Also, in People v.

Williams, 204 Ill. 2d 191, 200-01 (2003), the State conceded that a later filed charge of first degree murder was subject to compulsory joinder with the initial charge of contributing to the criminal delinquency of a juvenile in connection with the murder. The question before the supreme court was “whether continuances attributable to the defendant on the contributing charge were attributable to him on the murder charge.” Williams, 204 Ill. 2d at 201. None of these cases involved a change in classification of the offense based on a prior conviction.

All of the cases related to the addition of new charges with new elements to be presented to the jury that arose from the same facts giving rise to the original charges. That is not the case here. Count II did not allege any new elements or new crimes for which defendant was being charged. The State sought to raise the classification of the offense, that is, to enhance defendant’s sentence based on his prior conviction. Consequently, the speedy trial period was tolled when defendant agreed to numerous continuances between July 23, 2002, and November 26, 2002.

Accordingly, because the amendment to defendant’s charging instrument did not affect his speedy trial rights, there was no legal basis for defense counsel to move to dismiss count II of the indictment pursuant to a speedy trial violation. See Garcia, 251 Ill. App. 3d at 478-79. Additionally, we are not persuaded by defendant’s argument that the language of

section 111 — 3(

d) of the Code fails to protect against a violation of defendant’s speedy trial rights in this case. The statute provides: “At any time prior to trial, the State on motion shall be permitted to amend the charge, whether brought by indictment, information or complaint, to make the charge comply with subsection (

c) or (c — 5) of this Section. Nothing in

Section 103 — 5 of this Code precludes such an amendment or a written notification made in accordance with subsection (c — 5) of this Section.” 725 ILCS 5/111— 3(d) (West 2002). Defendant claims that, because the legislature did not expressly identify subsection (

c) in the latter sentence, an amendment based on a prior conviction is necessarily precluded from the protection provided to subsection (c — 5) against speedy trial dismissals.

Section 111 — 3(c—5) states: “Notwithstanding any other provision of law, in all cases in which the imposition of the death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt.

Failure to prove the fact beyond a reasonable doubt is not a bar to a conviction for commission of the offense, but is a bar to increasing, based on that fact, the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for that offense. Nothing in this subsection (c — 5) requires the imposition of a sentence that increases the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense if the imposition of that sentence is not required by law.” 725 ILCS 5/111 — 3(c—5) (West 2002).

When interpreting a statute, the primary goal is to give effect to the legislature. People v. Kohl, 364 Ill. App. 3d 495, 499 (2006). Here, the statute provides that “an amendment or written notification made in accordance with subsection (c — 5)” will not affect a defendant’s speedy trial rights. 725 ILCS 5/111 — 3(d) (West 2002). The legislature enacted subsection (c — 5) in response to the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.

Ct. 2348 (2000), which held that whenever a fact other than a prior conviction is considered to enhance a penalty beyond the statutory maximum, that fact must be found beyond a reasonable doubt by the trier of fact. See People v. Crutchfield, 353 Ill. App. 3d 1014, 1023 (2004). The resulting statute requires that the defendant be provided with written notification where an alleged fact, other than a prior conviction, is not an element of the offense as charged but increases the sentencing range. 725 ILCS 5/111 — 3(c—5) (West 2002).

However, pursuant to subsection (c), written notification is not required where a sentence is enhanced based on a prior conviction. Compare 725 ILCS 5/111 — 3(0—5) (West 2002) with 725 ILCS 5/111 — 3(c) (West 2002). Accordingly, the legislature expressly included the phrase “in accordance with subsection (c — 5)” to modify the requirement of written notification, not to limit the protection of amendments pursuant to subsection (

c) against speedy trial dismissals. 725 ILCS 5/111 — 3(d) (West 2002). Any other

interpretation would lead to an absurd result. See Kohl, 364 Ill. App. 3d at 499. Defendant next contends that his constitutional right to testify was violated. Specifically, defendant argues that waiver cannot be presumed and the record fails to establish that he “voluntarily, knowingly, and intelligently” waived his right to testify. The State responds that no violation occurred because the trial court was not required to admonish defendant of his right to testify and defendant failed to indicate that he wished to exercise that right. The ultimate decision whether to testify belongs to defendant. People v.

Ramey, 152 Ill. 2d 41, 54 (1992). However, our supreme court has firmly established that a defendant seeking reversal of his conviction on the basis that he was precluded from testifying at trial must demonstrate that he “contemporaneously asserted his right to testify by informing the trial court that he wished to do so.” People v. Smith, 176 Ill. 2d 217, 234 (1997).

Further, our supreme court determined that the trial court is not required “to advise a defendant of his right to testify, to inquire whether he knowingly and intelligently waived that right” or to ensure that the record establishes defendant’s waiver of that right. Smith, 176 Ill. 2d at 235. In the instant case, defendant failed to assert his right to testify. The record is devoid of any evidence that defendant alerted the trial court that he wanted to testify. Cf. People v. Whiting, 365 Ill. App. 3d 402, 407 (2006). We decline to adopt defendant’s totality of the circumstances analysis to the instant issue.

Although the right to testify is a fundamental right belonging to the defendant (Whiting, 365 Ill. App. 3d at 407), our supreme court has expressly distinguished the waiver of that right from a jury waiver and a voluntary guilty plea. Smith, 176 Ill. 2d at 234-35. Accordingly, we find that defendant waived his right to testify. Accordingly, we affirm the judgment of the circuit court of Cook County. Affirmed. CAHILL, J., concurs. We need not detail the testimony as defendant does not contest the sufficiency of the evidence supporting his conviction.