People v. Donahue

• Docket Number: 5-20-0274
• Decision Date: 31 March 2022
• Citation: 2022 IL App (5th) 200274,205 N.E.3d 956,461 Ill.Dec. 868
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Barney DONAHUE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2022 IL App (5th) 200274

205 N.E.3d 956

461 Ill.Dec. 868

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Barney DONAHUE, Defendant-Appellant.

NO. 5-20-0274

Appellate Court of Illinois, Fifth District.

Filed March 31, 2022

James E. Chadd, Ellen J. Curry, and Christina M. O'Connor, of State Appellate Defender's Office, of Mt. Vernon, for appellant.

James A. Gomric, State's Attorney, of Belleville (Patrick Delfino and Patrick D. Daly, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE WELCHdelivered the judgment of the court, with opinion.

¶ 1 This is a direct appeal from the circuit court of St. Clair County.The defendant, Barney Donahue, pleaded guilty to two counts of possessing child pornography.On July 16, 2020, he was sentenced to six years’ imprisonment, followed by three years of mandatory supervised release (MSR).The defendant contends that he is entitled to 461 days of credit toward his sentence for the time he spent on pretrial in-home electronic monitoring.For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On April 2, 2019, the State charged the defendant with 10 counts of possessing child pornography ( 720 ILCS 5/11-20.1(a)(6)(West 2018)).¹The defendant was arrested, and on April 5, 2019, the trial court granted his motion to reduce bail.The court set his bail at $90,000 with "(10% to apply)."The court ordered that, if the defendant posted bond, he would be subject to certain conditions, including "[e]lectronic monitoring through the probation department"; access to "revisit bond," if circumstances changed; and permission to travel to Missouri for work.

¶ 4 On April 11, 2019, the defendant posted bond and entered into an electronic supervision program agreement and conditions.The agreement provided that, as a condition of his bond, the defendant had been placed on the electronic supervision program, and he was subject to supervision by both the trial court and the probation department.The defendant agreed to remain at his residence unless he was leaving for an approved reason, or he was authorized to leave by a court order or a probation officer.He also agreed to be monitored by phone calls or personal visits to his home by a probation officer or the police department.The defendant agreed to wear a transmitter 24 hours per day during his participation in the program.The agreement warned that certain violations may subject the defendant to prosecution under Illinois law.The special conditions set forth in the agreement were the same as those declared in the court's prior order setting the defendant's bond amount and conditions of bond.The agreement was signed by the defendant, a probation officer, and the trial judge.

¶ 5 On July 16, 2020, the defendant entered a fully negotiated guilty plea.In exchange for pleading guilty to two counts of possessing child pornography, the defendant agreed to a sentence of three years imprisonment for each count, to run consecutively.The remaining counts were dismissed.The defendant was informed of the applicable MSR term and that he would be required to register as a sex offender for the rest of his life.The trial court then gave him the proper admonishments, counsel stipulated to the factual basis for the plea, and the court accepted the plea.Both parties waived the presentence investigation report, and the defendant was sentenced according to the plea agreement.The court then informed the defendant that he would receive credit against his sentence from March 28, 2019, to April 11, 2019.He was then released from his electronic monitor.

¶ 6 On August 12, 2020, the defendant filed two pro se motions.The first was to recoup the costs for his pretrial GPS monitoring.The second motion sought to recalculate his sentence to include credit for the time he spent on pretrial electronic monitoring.The defendant asserted that his liberty was restricted while he was on electronic monitoring, and he was entitled to an additional 461 days of sentencing credit.The court denied both motions, finding that they were without merit and were not modified by counsel.

¶ 7The defendant filed his notice of appeal on August 28, 2020.

¶ 8 II.ANALYSIS

¶ 9The defendant's sole contention on appeal is that he is entitled to 461 days of credit toward his sentence for the time he spent on pretrial in-home electronic monitoring.According to the defendant, the recent amendment of section 5-4.5-100 of the Unified Code of Corrections(Code of Corrections)(Pub. Act 101-652, § 10-281(eff. July 1, 2021)(amending730 ILCS 5/5-4.5-100)) demonstrates the legislature's intent to make such credit mandatory, where the statute was previously ambiguous, and Illinois courts have found that defendants who were ordered to home confinement as a condition of bond were not entitled to receive credit.The State argues that the defendant misreads section 5-4.5-100 and that, notwithstanding the recent amendment, the plain language of the statute still does not grant sentencing credit for a defendant who is released on pretrial home supervision.The State further asserts that People v. Ramos , 138 Ill. 2d 152, 149 Ill.Dec. 273, 561 N.E.2d 643(1990), andPeople v. Beachem , 229 Ill. 2d 237, 321 Ill.Dec. 793, 890 N.E.2d 515(2008), remain good law, and under such precedent, we must conclude that the defendant is not entitled to any sentencing credit for his time spent on in-home electronic monitoring.

¶ 10 The dispositive issue in this case is whether the defendant was participating in a home detention program, such that he would be entitled to sentencing credit under section 5-4.5-100(b) of the Code of Corrections(730 ILCS 5/5-4.5-100(b)(West 2020)).The answer to this issue requires that we look at the conditions of the defendant's bail versus the statutorily defined term, "home detention."Issues of statutory construction are reviewed de novo.People v. Johnson , 2013 IL 114639, ¶ 9, 374 Ill.Dec. 489, 995 N.E.2d 986.Whether a defendant is entitled to receive presentence custody credit against his sentence is also subject to de novo review.People v. Jones , 2015 IL App (4th) 130711, ¶ 12, 398 Ill.Dec. 700, 44 N.E.3d 1112.

¶ 11The defendant's bail bond included a financial term of $90,000 (with 10% required to be posted) and several other terms, including an order for electronic monitoring.The order for electronic monitoring included the condition that the defendant was required to remain in his residence, but he could leave to go to Missouri for work or for other approved reasons.As such, the bail and its conditions were authorized by the bail provisions of the Code of Criminal Procedure of 1963(Code of Criminal Procedure)( 725 ILCS 5/110-1 to 110-18(West 2020)).

¶ 12 Specifically, section 110-10(b)(14) states that various conditions may be imposed on a defendant's bond, including that defendant may

"[b]e placed under direct supervision of the Pretrial Services Agency, Probation Department or Court Services Department in a pretrial bond home supervision capacity with or without the use of an approved electronic monitoring device subject to Article 8A of Chapter V of the Unified Code of Corrections[( 730 ILCS 5/5-8A-1 et seq.(West 2020))]."Id.§ 110-10(b)(14).

Important to our consideration here is the designation, "home supervision."This term is not defined, so we give it its plain and ordinary meaning.People v. McChriston , 2014 IL 115310, ¶ 15, 378 Ill.Dec. 430, 4 N.E.3d 29(an undefined term in a statute should be given its plain and ordinary meaning, which is often ascertained from the dictionary definition)."Supervision" is defined as "the act, process, or occupation of supervising: direction, inspection, and critical evaluation."Webster's Third New International Dictionary 2296 (1976).Thus, the plain and ordinary meaning of home supervision is the inspecting, directing, and evaluating defendant's compliance with the terms of his bond conditions.

¶ 13 The other piece of the interpretive puzzle is "home detention."Section 5-4.5-100(b) provides for crediting "home detention":

"(b) CREDIT; TIME IN CUSTODY; SAME CHARGE.Except as set forth in subsection (e), the offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for the number of days spent in custody as a result of the offense for which the sentence was imposed.The Department shall calculate the credit at the rate specified in Section 3-6-3( 730 ILCS 5/3-6-3 ).Except when prohibited by subsection (d), the trial court shall give credit to the defendant for time spent in home detention on the same sentencing terms as incarceration as provided in Section 5-8A-3.The trial court may give credit to the defendant for the number of days spent confined for psychiatric or substance abuse treatment prior to judgment, if the court finds that the detention or confinement was custodial."730 ILCS 5/5-4.5-100(b)(West 2020).

¶ 14" ‘Home detention’ " is further defined as "the confinement of a person convicted or charged with an offense to his or her place of residence under the terms and conditions established by the supervising authority."Id.§ 5-8A-2(C).For our purposes, an offender serving a valid "home detention" will receive sentencing credit; likewise, the offender will be given credit for time spent in "custody."Id.§ 5-4.5-100(b).

¶ 15 When we compare the terms "home supervision" and "home detention,"we end up with two separate and distinct concepts.For a defendant under home supervision, the agency tasked with the supervisory role will inspect, direct, and evaluate his performance in complying with the requirement he remain at his home.This may sound like "custody," meaning a duty to submit to legal authority.People v. Riley , 2013 IL App (1st) 112472, ¶ 12, 368 Ill.Dec. 403, 984 N.E.2d 128("custody" is an expansive concept referring to the duty to submit to legal authority; "incarceration," by contrast,...