NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 190507
Order filed August 23, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of the 13th Judicial Circuit, Plaintiff-Appellant, ) La Salle County, Illinois. ) v. ) Appeal No. 3-19-0507 ) Circuit No. 18-CF-448 LUIS A. FIGUEROA SILVA, ) ) The Honorable Defendant-Appellee. ) Cynthia M. Raccuglia, ) Judge, Presiding. ___________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court. Justice Holdridge concurred in the judgment. Justice Schmidt dissented. ____________________________________________________________________________
ORDER
¶1 Held: Appellate court lacks jurisdiction to consider State’s appeal of trial court order denying State’s motion to amend indictment where defendant remained subject to bond and his presence was required at future proceedings after order was entered.
¶2 In October 2018, the State charged defendant Luis A Figueroa Silva, by indictment, with
unlawful possession with intent to deliver more than 900 grams of a substance containing cocaine.
720 ILCS 570/401(a)(2)(D) (West 2018). Five months later, the State filed a motion to amend the indictment to change the controlled substance from cocaine to fentanyl. The trial court denied the
State’s motion. The State filed a certificate of substantial impairment and a notice of appeal. We
dismiss the State’s appeal for lack of jurisdiction.
¶3 BACKGROUND
¶4 On October 17, 2018, defendant was the passenger in a truck stopped on Interstate 80 by
an Illinois State Police officer. Another officer arrived with a K9, who sniffed the vehicle and
alerted, suggesting the presence of a controlled substance. The truck was towed to another location,
where officers searched it and found several packages of a controlled substance. Field testing on
the substance showed it was cocaine.
¶5 On October 23, 2018, the State charged defendant by indictment with “unlawful possession
of controlled substance with intent to deliver (Class X) in that the said defendant knowingly and
unlawfully possessed with the intent to deliver more than 900 grams of a substance containing
cocaine.” Defendant pled not guilty and demanded both a speedy trial and a jury trial.
¶6 On January 10, 2019, defendant filed a Motion to Suppress Evidence Illegally Seized and
a Motion to Suppress Confession. On January 29, 2019, the State provided documents to
defendant, including a report from the Illinois State Police Forensic Science Laboratory dated
January 22, 2019, which stated that 993.1 grams of powder from two of the four packages
recovered from the truck defendant was travelling in as a passenger were tested and found to
contain fentanyl.
¶7 On March 15, 2019, the State filed a motion to amend the indictment, pursuant to section
111-5 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-5 (West 2018)), to
change the controlled substance identified in the indictment from cocaine to fentanyl. Defendant
filed a response, arguing that the State’s motion should be denied because “[t]he nature of the
2 controlled substance is not a mere formal defect” that could be corrected pursuant to section 111-
5 of the Code.
¶8 On May 30, 2019, the trial court denied the State’s motion to amend. The court’s written
order from that date (1) set the case for further status on June 26, 2019, (2) reduced defendant’s
bond and bond conditions to allow him to leave Illinois and return to his home in California, and
(3) required defendant to appear at all future court dates with the exception of the June 26, 2019
status hearing.
¶9 The State filed a motion to reconsider. On August 21, 2019, the trial court denied the State’s
motion to reconsider and granted the State leave to file an interlocutory appeal if supported by a
certificate of substantial impairment. Immediately thereafter, the State filed a certificate of
substantial impairment to proceed to trial. On August 27, 2019, the State filed its notice of appeal.
¶ 10 ANALYSIS
¶ 11 An appellate court is obligated to ascertain its jurisdiction before proceeding in a cause of
action. People v. Vara, 2018 IL 121823, ¶ 12. The determination of whether the appellate court
has jurisdiction to consider an appeal is a question of law, which we review de novo. People v.
Shinaul, 2017 IL 120162, ¶ 8.
¶ 12 “The right of appeal is governed by the Supreme Court Rules and must be in compliance
therewith.” People v. Kepi, 65 Ill. App. 3d 327, 331 (1978). “In a criminal case the State may
appeal only as permitted by Supreme Court Rule 604(a).” People v. Johnson, 113 Ill. App. 3d 367,
370 (1983).
¶ 13 Supreme Court Rule 604(a)(1) provides: “In criminal cases the State may appeal only from
an order or judgment the substantive effect of which results in dismissing a charge for any of the
grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963; arresting
3 judgment because of a defective indictment, information or complaint; quashing an arrest or search
warrant; or suppressing evidence.” Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017). Section 114-1 of the
Code provides in pertinent part:
“(a) Upon the written motion of the defendant made prior to trial before or after a
plea has been entered the court may dismiss the indictment, information or
complaint upon any of the following grounds:
(1) The defendant has not been placed on trial in compliance with Section 103-5
of this Code.
(2) The prosecution of the offense is barred by Sections 3-3 through 3-8 of the
Criminal Code of 2012.
(3) The defendant has received immunity from prosecution for the offense
charged.
(4) The indictment was returned by a Grand Jury which was improperly selected
and which results in substantial injustice to the defendant.
(5) The indictment was returned by a Grand Jury which acted contrary to Article
112 of this Code and which results in substantial injustice to the defendant.
(6) The court in which the charge has been filed does not have jurisdiction.
(7) The county is an improper place of trial.
(8) The charge does not state an offense.
(9) The indictment is based solely upon the testimony of an incompetent witness.
(10) The defendant is misnamed in the charge and the misnomer results in
substantial injustice to the defendant.
4 (11) The requirements of Section 109-3.1 have not been complied with.” 725
ILCS 5/114-1 (West 2018).
¶ 14 The grounds set forth in section 114-1 are not exclusive. People v. Lawson, 67 Ill. 2d 449,
456 (1977). “When Rule 604(a) made explicit the right of the State to appeal on grounds set forth
in section 114-1 ***, it was not intended to reduce the range of the State's right to appeal but to
make clear that the State had a right to appeal from dismissals on any of the [11] grounds of
dismissal set forth in section 114-1.” People v. Love, 39 Ill. 2d 436, 439 (1968); see also People v.
Marbly, 85 Ill. App. 3d 935, 937 (1980) (“it was not the intent of Rule 604(a) to limit the State's
right to appeal to section 114-1 grounds alone”).
¶ 15 “It is the substantive effect of a trial court's pretrial order, not the label of the order or its
underlying motion, that controls appealability under Rule 604(a)(1).” People v. Baltimore, 381 Ill.
App. 3d 115, 123 (2008) (citing People v. Drum, 194 Ill. 2d 485, 489 (2000)). Where the
substantive effect of the trial court’s order is dismissal of the criminal charges against the
defendant, the State may appeal the order under Rule 604(a) even if the order does not meet one
of the grounds enumerated in section 114-1. See In re Pryor, 111 Ill. App. 3d 851, 853 (1982); see
also Lawson, 67 Ill. 2d at 455 (“a trial court does have an inherent authority to dismiss an
indictment in a criminal case where there has been a clear denial of due process even though that
is not a stated ground in section 114-1”); Marbly, 85 Ill. App. 3d at 937 (1980) (allowing State to
appeal trial court order denying reinstatement of case even though it is not listed in section 114-
1).
¶ 16 An order does not have the substantive effect of dismissing the criminal charges against a
defendant where (1) the defendant is still subject to bond after the order is entered, or (2) further
proceedings are contemplated by the trial court. See People v. Scholin, 62 Ill. 2d 372, 373 (1975);
5 see also People v. Heddins, 66 Ill. 2d 404, 406 (1977) (“It is *** obvious that the order which held
defendant to bail and contemplated ‘further proceedings in this cause’ did not effect the dismissal
of the charge.”). “[W]here the trial court *** orders that the defendant be held on bond pending
further proceedings [citation], the intent to dismiss the charge is negated by the court's
contemplation of further proceedings, and thus such an order is not appealable.” People v. Harris,
68 Ill. App. 3d 12, 15-16 (1979).
¶ 17 Here, when the trial court denied the State’s motion to amend the indictment, it also (1) set
the case for further status, (2) reduced, but did not eliminate, defendant’s bond and bond
conditions, and (3) required defendant to appear at future court dates. Because defendant remained
on bond and the court contemplated further proceedings after it entered its order, the order did not
have the substantive effect of dismissing the charge against defendant and, thus, was not
appealable by the State. See Heddins, 66 Ill. 2d at 406; Scholin, 62 Ill. 2d at 373; Harris, 68 Ill.
App. 3d at 15-16. We dismiss the State’s appeal for lack of jurisdiction.
¶ 18 CONCLUSION
¶ 19 For the foregoing reasons, we dismiss the State’s appeal.
¶ 20 Appeal dismissed.
¶ 21 JUSTICE SCHMIDT, dissenting:
¶ 22 The State has a right to appeal from a final order of the court when the impact of that order
is to dismiss an indictment. Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017). The majority relies on the
fact that defendant remained on bond and the court contemplated further proceedings in concluding
that the denial of the motion to amend did not have the substantive effect of dismissing the
indictment. Supra ¶ 17. I disagree and therefore respectfully dissent.
6 ¶ 23 After denying the motion to amend the court asked the State whether the ruling
significantly impacted the prosecution of the case. The State responded “absolutely” to which the
court in turn responded “I think so. That’s why I said what I did.” Defense counsel then requested
to proceed with presenting evidence. The court explained,
“THE COURT: We’re not going to proceed on evidence if there’s not a
case.
MR. DURKEE [(DEFENSE ATTORNEY)]: Understood.
THE COURT: Which by my ruling you substantially interfered with their
case.”
¶ 24 A review of the motion to reconsider proceedings further reveals the erroneous nature of
the majority’s holding. Specifically, the following dialogue took place:
“THE COURT: Bail will be exonerated, and the charges are
dismissed.
MR. LOMBARDI [(ASSISTANT STATE’S ATTORNEY)]: Well,
we were actually asking that there be—this case be held in abeyance
pending the disposition of the appeal.
MR. DURKEE: And I don’t have any objection to that. I just want
the bail exonerated.
THE COURT: I will exonerate the bail and hold the case in
abeyance, yes.”
¶ 25 The lower court recognized that the ruling denying the motion to amend had the substantive
impact of dismissing the charges. That is why the court directed the State to file a certificate of
7 impairment for an interlocutory appeal, exonerated the bond, moved to dismiss the charges, and
did not establish a calendar for further proceedings.
¶ 26 Even ignoring the statements of the court in denying the motion to amend and the motion
to reconsider proceedings, in finding we lack jurisdiction, the majority relies on the machinations
of a circuit court that explicitly stated, “I don’t really have an answer *** [b]ut I have to rule”
when confronted with the motion to amend. Not only is this error but also the quintessential
example of exalting form over substance.
¶ 27 Defendant argued below that the State is barred from seeking another indictment based on
fentanyl due to speedy-trial considerations, namely, compulsory joinder (720 ILCS 5/3-3 (West
2018). Contra, People v. Hunter, 2013 IL 114100, ¶ 10 (quoting People v. Quigley, 183 Ill. 2d 1,
13 (1998)), quoting People v. Williams, 94 Ill. App. 3d 241, 248-49 (1981) (“ ‘ “Where new and
additional charges arise from the same facts as did the original charges and the State
had knowledge of these facts at the commencement of the prosecution, the time within which trial
is to begin on the new and additional charges is subject to the same statutory limitation that is
applied to the original charges.” ’ ”) (Emphasis added.); People v. Ursery, 364 Ill. App. 3d 680,
689-90 (2006). The State conceded this point without offering much in the way of analysis.
Nonetheless, if defendant is correct in his assertion, the ruling complained of in this instance is
similar to an order granting a motion to suppress the fentanyl evidence, as the State is precluded
from pursuing a charge based on fentanyl. Further, there is no evidence of cocaine. How can the
State proceed on a charge of possession of cocaine with intent to deliver in the absence of cocaine?
This order has the substantive effect of suppressing the fentanyl evidence and dismissing the
charge based on cocaine. The State has grounds on which to appeal, and this court has jurisdiction.
8 ¶ 28 Turning to the merits, we are asked to decide whether the denial of the State’s motion to
substitute one controlled substance for another within the same class and carrying the same penalty
constituted an abuse of discretion. The circuit court made clear that it did not know the answer and
wanted the appellate court to issue a ruling. My colleagues decline this invitation, so I must accept.
¶ 29 “Section 111-5 of the Code (725 ILCS 5/111-5 (West 2006)) allows the amendment of an
indictment, information, or complaint at any time to correct a formal defect, including a
miswriting.” People v. Shipp, 2011 IL App (2d) 100197, ¶ 21 (citing People v. Flores, 250 Ill.
App. 3d 399, 401 (1993)). Amending a charging instrument is warranted where there is no resulting
surprise or prejudice to the defendant or where the record shows that the defendant was otherwise
aware of the actual charge. Id. An amendment is substantive, rather than formal, when “(1) it
materially alters the charge, and (2) it cannot be determined whether the grand jury intended the
alteration.” People v. Milton, 309 Ill. App. 3d 863, 866 (1999). This distinction between
substantive and formal defects “rests, at least in part, on the fact that where there are substantive
changes as opposed to technical defects, it cannot be known whether a grand jury would have
returned such an altered indictment.” Id. The offense of possession of a controlled substance with
intent to deliver consists of three elements: (1) the defendant had knowledge of the presence of a
controlled substance; (2) the controlled substance was within the immediate control or possession
of the defendant; and (3) the defendant had intent to deliver the controlled substance. People v.
Robinson, 167 Ill. 2d 397, 407 (1995).
¶ 30 The denial of the motion to amend in this case was an arbitrary and capricious decision.
The grand jury’s intent in this case is clear. It intended to indict defendant on a charge of possession
of a controlled substance with intent to deliver based on the powder found in the vehicle. To say
the State must return to the grand jury to amend the controlled substance in the indictment defies
9 common sense. The old adage goes that a prosecutor can convince a grand jury to indict a ham
sandwich. 1 However, defendant would have us believe that somehow the result here would differ
if the grand jury were, instead, presented with evidence that he was in possession with the intent
to deliver a controlled substance exponentially more lethal than the substance the grand jury
actually indicted him on. Nonsense. Whether the prosecutor told the grand jury the powder found
in the vehicle was cocaine or fentanyl, the result undoubtedly would be the same.
¶ 31 The underlying logic supporting the decision in People v. Flores applies here. In Flores,
the defendant was charged by indictment with two counts of delivery of cocaine and one count of
delivery of heroin. Flores, 250 Ill. App. 3d at 399. The grand jury only heard evidence based on
cocaine but indicted defendant on all three charges. Id. at 400. The defendant then stipulated pre-
trial that the substance was cocaine. Id. The evidence at trial established that the substance was
cocaine. Id. at 399-400. In rebuttal closing argument, the State moved to amend the charge based
on heroin to cocaine. Id. at 399. The court allowed the amendment, found the defendant guilty of
all charges, and the defendant subsequently appealed. Id. at 400. The appellate court affirmed,
finding that under the circumstances, the requested amendment resulted in neither surprise nor
prejudice to the defendant, and the formal amendment was required to change the type of
controlled substance to reflect what the grand jury intended to indict the defendant on. Id. at 403.
¶ 32 Here, as already discussed, the grand jury intended to indict defendant with possession of
a controlled substance with intent to deliver based on the powder in the vehicle. Further, there was
no prejudice or surprise to defendant. Defendant remains charged with possession of a controlled
substance with intent to deliver. While the circuit court stated it was not considering surprise or
1 “Solomon Wachtler, then Chief Judge of the New York Court of Appeals, famously remarked that prosecutors could convince a grand jury to ‘indict a ham sandwich’ if that is what they wanted.” United States v. Davis, 793 F.3d 712, 728 (7th Cir. 2015) (citing Marcia Kramer & Frank Lombardi, New top state judge: Abolish grand juries & let us decide, N.Y. DAILY NEWS, Jan. 31, 1985, at 3).
10 prejudice as part of its ruling, it then opined no less than five times that there was no surprise to
defendant, and no less than three times that defendant faced no prejudice from the amendment.
The underlying notion of due process in criminal proceedings requires a defendant be afforded the
kind of fairness that is essential to the very concept of justice. See Lisenba v. California,
314 U.S. 219, 236-37 (1941). Finding that there is no surprise or prejudice to defendant is
equivalent to finding that allowing the amendment would not be unfair. This is particularly true in
this case, where the intent of the grand jury is clear.
¶ 33 The change from cocaine to fentanyl results in zero deviation in the class of offense or
possible penalty. The change in the controlled substance in no way impacts his defense. Defendant
failed to argue prejudice either in the lower court or on appeal. The amendment does not
contravene the intent of the grand jury, nor does it materially alter the charge. Under the facts of
this case, a formal amendment is required to correct a miswriting in the indictment. The circuit
court abused its discretion.
¶ 34 Defendant relies on People v. Betts, 78 Ill. App. 3d 200, 204 (1979), and People v. Troutt,
51 Ill. App. 3d 656 (1977), for the argument that a change in the controlled substance is
substantive.
¶ 35 In Betts, the State amended an indictment charging delivery of a controlled substance.
Betts, 78 Ill. App. 3d at 201. The State amended the indictment to charge that the defendant
delivered a controlled substance that was a narcotic to one that was not a narcotic, which, in turn,
altered the class of the offense and corresponding penalty. Id. at 201-02. The appellate court found
the amendment was substantive, not formal, and reversed. Id.
¶ 36 In Troutt, the State charged the defendant by information with unlawful possession of less
than 30 grams of amphetamine, a controlled substance. Troutt, 51 Ill. App. 3d at 658. The State
11 then amended the information to charge that the defendant unlawfully possessed less than 300
grams of phencyclidine, a different controlled substance. Id. at 658-59. The appellate court found
that the amendment was substantive. Id. at 661-62.
¶ 37 In this case, the State is not requesting a change in the amount of the controlled substance
nor will the sentencing range or class of offense change. Betts and Troutt are clearly
distinguishable. The State is not seeking to charge defendant with a separate and distinct offense
per the amendment but, instead, simply a different way in which to commit the same offense
¶ 38 Allowing the amendment does not prejudice defendant and properly reflects the intent of
the grand jury to indict defendant of the charged offense based on the controlled substance found
in the vehicle. An amendment is required in this case to correct a formal defect.
¶ 39 We do have jurisdiction and should reverse and remand with directions for the circuit court
to allow the State to amend the indictment.