People v. Caballero

• Citation: 885 N.E.2d 1044,228 Ill.2d 79
• Decision Date: 07 February 2008
• Docket Number: No. 104216.,104216.
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Eduardo CABALLERO, Appellee.
• Court: Illinois Supreme Court

885 N.E.2d 1044

228 Ill.2d 79

The PEOPLE of the State of Illinois, Appellant, v. Eduardo CABALLERO, Appellee.

No. 104216.

Supreme Court of Illinois.

February 7, 2008.

Rehearing Denied March 24, 2008.

Lisa Madigan, Attorney General, Springfield, Joseph E. Birkett, State's Attorney, Wheaton (Michael A. Scodro, Solicitor General, Michael M. Glick, Erica Seyburn, Assistant Attorneys General, Chicago, Norbert J. Goetten, Martin P. Moltz, Mary Beth Burns, Office of the State's Attorneys Appellate Prosecutor, Elgin, of counsel), for the People.

Thomas A. Lilien, Deputy Defender, Jaime L. Montgomery, Assistant Appellate Defender, Office of the State Appellate Defender, Elgin, for appellee.

OPINION

Justice KARMEIER delivered the judgment of the court, with opinion:

The issues presented by this appeal are: (1) whether a reviewing court may grant the per diem monetary credit conferred by section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2002)) to a defendant who first applies for it on appeal from the dismissal of his postconviction petition; and (2) whether a defendant may receive the per diem monetary credit conferred by section 110-14 for the time he was incarcerated upon revocation of his bail after conviction until his sentencing.

BACKGROUND

Defendant Eduardo Caballero was indicted for unlawful possession with intent to deliver 100 to 400 grams of a substance containing cocaine. After his arrest, he spent two day in jail, posted bail, and was released. A jury in the circuit court of Du Page County later convicted him of the offense and his bond was revoked the same day. He was remanded to jail, where he remained for an additional 116 days prior to sentencing. He was sentenced to 14 years' imprisonment and, among other things, fined $6,300 based on the "street value" of the narcotics he was convicted of possessing. On direct appeal defendant did not raise any issue involved in this appeal and the appellate court affirmed his conviction and sentence. People v. Caballero, No. 2-03-0299, 347 Ill.App.3d 1117, 310 Ill.Dec. 810, 867 N.E.2d 123 (2004) (unpublished order under Supreme Court Rule 23).

Defendant later filed a pro se petition for postconviction relief, which was dismissed by the trial court as frivolous and patently without merit. On appeal, defendant argued that the trial court erred in dismissing his petition because it sufficiently alleged the gist of a constitutional claim of ineffective assistance of counsel. Defendant also claimed that pursuant to section 110-14, his street-value fine should be reduced by $590, which is $5 for each of the 118 days he was in custody prior to sentencing. The appellate court affirmed the trial court's dismissal of defendant's petition, but held that defendant was entitled to a $590 credit against his street-value fine and ordered the clerk of the circuit court to modify the defendant's sentence. No. 2-05-0384 (unpublished order under Supreme Court Rule 23). We granted the State's petition for leave to appeal. 210 Ill.2d R. 315. For the reasons that follow, the judgment of the appellate court is affirmed.

STANDARD OF REVIEW

Both of the issues raised on this appeal involve the interpretation of Illinois statutes. The interpretation of state statutes is a question of law, which this court reviews de novo. People v. Harris, 224 Ill.2d 115, 123, 308 Ill.Dec. 757, 862 N.E.2d 960 (2007); People v. Brooks, 221 Ill.2d 381, 388, 303 Ill.Dec. 161, 851 N.E.2d 59 (2006).

ANALYSIS

Section 110-14 provides in pertinent part: "Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant." 725 ILCS 5/110-14 (West 2002). In People v. Woodard, 175 Ill.2d 435, 457-58, 222 Ill.Dec. 401, 677 N.E.2d 935 (1997), we held that the per diem monetary credit allowed upon application by the defendant under section 110-14 is mandatory, it cannot be waived and it can be raised for the first time on appeal.

The State argues, however, that defendant's claim under section 110-14 involves a statutory right and it is not cognizable in a postconviction proceeding. The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)) provides a means by which a defendant may collaterally attack his conviction or sentence for violations of federal or state constitutional rights. People v. Pendleton, 223 Ill.2d 458, 471, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). To demonstrate entitlement to postconviction relief, a defendant must show that he has suffered a substantial deprivation of federal or state constitutional rights in the proceedings that produced the conviction or sentence being challenged. Pendleton, 223 Ill.2d at 471, 308 Ill.Dec. 434, 861 N.E.2d 999. The monetary per diem credit conferred by section 110-14 is a statutory right. Woodard, 175 Ill.2d at 457, 222 Ill.Dec. 401, 677 N.E.2d 935. The State concludes from this that defendant's claim involves a statutory right, not a constitutional right, and it is, therefore, not cognizable in a postconviction proceeding.

Neither the State nor the defendant has cited any Illinois cases dealing with a claim for a monetary per diem credit under section 110-14 being initially raised on an appeal in a postconviction proceeding and we have found none. However, People v. Wren, 223 Ill.App.3d 722, 166 Ill.Dec. 194, 585 N.E.2d 1216 (1992), People v. Andrews, 365 Ill.App.3d 696, 303 Ill.Dec. 83, 850 N.E.2d 888 (2006), and People v. Brown, 371 Ill.App.3d 972, 309 Ill.Dec. 526, 864 N.E.2d 767 (2007), are appellate court cases dealing with a sentencing credit under section 5-8-7(b) of the Unified Code of Corrections (730 ILCS 5/5-8-7(b) (West 2002)) being raised for the first time on appeal in a postconviction proceeding.

Section 5-8-7(b) provides that the offender shall be given credit against his prison sentence for time spent in custody as a result of the offense for which the sentence was imposed. In Woodard, 175 Ill.2d at 457, 222 Ill.Dec. 401, 677 N.E.2d 935, we noted and cited a number of cases in which the sentencing credit in section 5-8-7(b) was treated similarly to the monetary per diem credit in section 110-14. We find that the rationale of Wren, Andrews and Brown is persuasive to the issue of an application for a monetary credit under section 110-14 being raised for the first time on an appeal in a postconviction hearing.

In Wren the court stated:

"Finally, defendant contends that he is entitled to credit for the original day spent in custody in this matter and argues that counsel's failure to raise this issue in post-conviction proceedings constitutes ineffective assistance. A sentencing credit issue of this type is not appropriately considered in an appeal from the dismissal of a post-conviction petition which did not raise the issue, but instead should be raised by filing a motion to amend mittimus in the trial court. However, `in the interests of an orderly administration of justice' [citation], we will treat defendant's request as a motion to amend mittimus and consider it because an amended mittimus may be issued at anytime. [Citation.]" Wren, 223 Ill.App.3d at 731, 166 Ill.Dec. 194, 585 N.E.2d 1216.

The court then decided that defendant was entitled to an additional day of credit. It affirmed the judgment of the trial court dismissing defendant's postconviction petition and remanded the cause to the circuit court for issuance of an amended mittimus. Wren, 223 Ill.App.3d at 731, 166 Ill.Dec. 194, 585 N.E.2d 1216.

In Andrews defendant was entitled to 113 days of sentencing credit, but due to a clerical error in the presentence investigation, he was only given a presentence credit of 112 days. Andrews, 365 Ill.App.3d at 697, 303 Ill.Dec. 83, 850 N.E.2d 888. The claim for the additional day of presentence credit was not made in the trial court or on direct appeal of his criminal conviction. Defendant filed a pro se postconviction petition and later his appointed counsel filed an amended petition for postconviction relief. Andrews, 365 Ill.App.3d at 698, 303 Ill.Dec. 83, 850 N.E.2d 888. Neither petition made reference to the sentencing-credit error. The trial court denied defendant's postconviction petition. The sole issue raised on appeal of the denial of the postconviction petition was the sentencing-credit error. The State argued that defendant waived this issue because he failed to raise it in his postconviction petition. Andrews, 365 Ill.App.3d at 698, 303 Ill.Dec. 83, 850 N.E.2d 888.

The Andrews court held that unlike the defendants in People v. Jones, 211 Ill.2d 140, 284 Ill.Dec. 287, 809 N.E.2d 1233 (2004), and People v. Jones, 213 Ill.2d 498, 290 Ill.Dec. 519, 821 N.E.2d 1093 (2004), who were attempting to raise new constitutional challenges, Andrews was merely attempting to assert a different and purely statutory right to full credit for his presentence incarceration. Andrews, 365 Ill. App.3d at 699, 303 Ill.Dec. 83, 850 N.E.2d 888. The court stated that its holding is in accord with, and quoted, the holding in Wren. Andrews, 365 Ill.App.3d at 699-700, 303 Ill.Dec. 83, 850 N.E.2d 888. The Andrews court also noted that People v. Reed, 335 Ill.App.3d 1038, 270 Ill.Dec. 396, 782 N.E.2d 955 (2003), held that an issue of a sentence credit did not involve a substantial deprivation of a constitutional right, and deemed the issue waived where it was first raised on appeal from the dismissal of a postconviction petition. The court concluded that the better reasoned and more judicially efficient procedures follow the logic announced in Wren. Andrews, 365 Ill.App.3d at 700, 303 Ill.Dec. 83, 850 N.E.2d 888.

In Brown the defendant contended for the first time in a supplemental brief on appeal in his postconviction proceeding that he was entitled to 419 days of presentence credit, rather than the 355 days reflected in the mittimus. The State...