People v. Jones

• Decision Date: 08 July 2015
• Docket Number: No. 4–13–0711.,4–13–0711.
• Citation: People v. Jones, 44 N.E.3d 1112 (Ill. App. 2015)
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Walter JONES, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

44 N.E.3d 1112

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Walter JONES, Defendant–Appellant.

No. 4–13–0711.

Appellate Court of Illinois, Fourth District.

July 8, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Megan E. Ledbetter, all of State Appellate Defender's Office, of Chicago, for appellant.

Randall Brinegar, State's Attorney, of Danville (Patrick Delfino and David J. Robinson, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice STEIGMANNdelivered the judgment of the court, with opinion.

¶ 1 In March 2015, defendant, Walter Jones, filed an unopposed motion for summary disposition, alleging he is entitled to credit for an additional 181 days served in custody under section 5–4.5–100(c) of the Unified Code of Corrections(Unified Code)(730 ILCS 5/5–4.5–100(c)(West 2010)).In May 2015, in response to an order entered by this court, the State submitted a supplemental memorandum of law (1) conceding defendant is entitled to credit for 164 days served in custody but (2) opposing defendant's request for an additional 17 days credit against his sentence.For the reasons that follow, we deny defendant's motion.

¶ 2 I. BACKGROUND

¶ 3 In June 2011, defendant was arrested and charged by information in Vermilion Countycase No. 11–CF–326 with residential burglary (720 ILCS 5/19–3(West 2010) ) and burglary (720 ILCS 5/19–1(a)(West 2010)) for an incident that occurred that same month.Defendant did not post bond.In October 2011, a jury found defendant guilty of burglary.In December 2011, the trial court sentenced defendant to 30 months' probation subject to certain terms and conditions.

¶ 4 On January 22, 2013, defendant was arrested and charged in Vermilion Countycase No. 13–CF–45 with a theft offense.Defendant did not post bond.

¶ 5 In February 2013, the State filed a petition to revoke probation in case No. 11–CF–326, alleging defendant violated the terms of his probation by (1) failing to report to two scheduled office visits in 2012; (2) missing multiple curfew checks in 2012; and (3) admittedly using drugs on January 7, 2013.In April 2013, after a hearing on the petition, the trial court found the State met its burden with respect to allegation Nos. (1) and (3).

¶ 6 In July 2013, the trial court revoked defendant's probation herein in case No. 11–CF–326 and resentenced him to seven years' imprisonment, with credit for 201 days served in custody from June to December 2011.The court rejected defendant's request for credit for time served in custody on the 2013 theft charge in case No. 13–CF–45(January to July 2013) because (1) the record did not indicate a warrant was issued or defendant was arrested on the petition to revoke, and (2)defendant would be entitled to credit in case No. 13–CF–45 and could not have it “count twice.”

¶ 7 That same month, defendant filed a motion to reconsider sentence herein in case No. 11–CF–326, which was denied.Defendant filed a notice of appeal and the office of the State Appellate Defender(OSAD) was appointed to represent defendant.

¶ 8 Subsequent to his resentencing in case No. 11–CF–326, in November 2014, defendant's 2013 theft charge in case No. 13–CF–45 was nol-prossed.

¶ 9 In March 2015, defendant filed the unopposed motion for summary disposition, requesting we order the Circuit Clerk to issue a corrected sentencing judgment reflecting he is entitled to an additional credit for 181 days served in custody from January to July 2013.In April 2015, this court entered an order directing each party to submit a supplemental memorandum of law addressing whether defendant should receive credit for time served in custody between his arrest on the theft offense (case No. 13–CF–45) and filing of the petition to revoke his probation (case No. 11–CF–326).In May 2015, the State submitted a supplemental memorandum of law (1) conceding defendant is entitled to credit for time spent in custody between the filing of the State's petition to revoke and defendant's sentencing but (2) opposing defendant's request for credit prior to the filing of the petition to revoke.

¶ 10 II.ANALYSIS

¶ 11Defendant argues he is entitled to credit for 181 days served in custody under section 5–4.5–100(c) of the Unified Code. 730 ILCS 5/5–4.5–100(c)(West 2010).Specifically, defendant argues under section 5–4.5–100(c)he“was arrested for theft, but prosecuted for violating his probation for conduct that occurred prior to his arrest [and][s]ince the six months spent in custody on the theft charge was not ultimately ‘credited against another sentence,’[he] must receive credit for that time on his burglary sentence.”

¶ 12 Whether a defendant should receive presentence custody credit against his sentence is reviewed under the de novo standard of review.People v. Clark , 2014 IL App (4th) 130331, ¶ 15, 383 Ill.Dec. 761, 15 N.E.3d 539.

¶ 13 A. Simultaneous Custody

¶ 14The trial court found defendant was not entitled to have credit for time served in custody on the 2013 theft charge applied against his burglary resentence in case No. 11–CF–326, because a warrant was not issued nor was defendant arrested on the petition to revoke.Defendant's motion does not contest this finding.Nevertheless, after reviewing the record on appeal, we find it would not support an argument that defendant was in simultaneous custody on both charges from February to July 2013.

¶ 15Section 5–4.5–100(b) of the Unified Code provides: “[An] offender shall be given credit on the determinate sentence * * * of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed * * *.”730 ILCS 5/5–4.5–100(b)(West 2010).Therefore, under this sectionwe must look to whether defendant was “in custody” on the petition to revoke.The common-law record does not indicate a warrant was issued, defendant was arrested, or a bond was surrendered on the petition to revoke in case No. 11–CF–326.The transcripts in case No. 11–CF–326 also do not support a finding defendant was in custody on the petition to revoke.For example, while in custody on the theft charge, defendant was notified at the probation violation arraignment, should he be released from custody on the theft offense and fail to appear at the next hearing, the State could ask for a warrant for his arrest.Later, at the hearing on the petition to revoke, defense counsel indicated defendant was not in custody “on this case.”The trial court further advised defendant, after finding the State met its burden on the petition to revoke, “[o]bviously if you remain in custody, they'll make sure you get there; but if you do get released, make sure you're in court[for the sentencing hearing.]”Finally, after the sentencing hearing was continued, defense counsel stated, “I believe [defendant is] in custody on his new case, not on this matter.”The record leaves no ambiguity with respect to the basis of defendant's custody.SeePeople v. Wiseman,195 Ill.App.3d 1062, 1066, 142 Ill.Dec. 696, 553 N.E.2d 46, 49(1990).Therefore, defendant has not shown he was in simultaneous custody.

¶ 16 B. Section 5–4.5–100(c) of the Unified Code

¶ 17 Rather, defendant relies on section 5–4.5–100(c) of the Unified Code (730 ILCS 5/5–4.5–100(c)(West 2010)) and cites this court's majority interpretation of the language contained in this section from People v. Cook,392 Ill.App.3d 147, 149–51, 331 Ill.Dec. 135, 910 N.E.2d 208, 209–11(2009), as a basis for his argument that he is entitled to additional presentence credit.Although Cook involved the former crediting statute(730 ILCS 5/5–8–7(c)(West 2006)), the language contained in section 5–4.5–100(c) is identical to the language contained in section 5–8–7(c)discussed inCook.SeeClark , 2014 IL App (4th) 130331, ¶ 20, 383 Ill.Dec. 761, 15 N.E.3d 539.However, we note that, since our decision in Cook, we have, after reconsidering the statutory language and its legislative history, foregone the analysis by the Cook majority for that of the Cook dissent.SeeClark , 2014 IL App (4th) 130331, ¶ 24, 383 Ill.Dec. 761, 15 N.E.3d 539;People v. Warren , 2014 IL App (4th) 120721, ¶¶ 164–69, 383 Ill.Dec. 831, 16 N.E.3d 13.

¶ 18Section 5–4.5–100(c) of the Unified Code provides:

“(c) CREDIT; TIME IN CUSTODY; FORMER CHARGE.An offender arrested on one charge and prosecuted on another charge for conduct that occurred prior to his or her arrest shall be given credit on the determinate sentence or maximum term and the minimum term of imprisonment for time spent in custody under the former charge not credited against another sentence.”730 ILCS 5/5–4.5–100(c)(West 2010).

The language “[a]n offender arrested on one charge,” refers to the arrest(s) that occurred first in time and the language “and prosecuted on another charge” refers to the charge filed after the original charge(s).SeeClark , 2014 IL App (4th) 130331, ¶ 23, 383 Ill.Dec. 761, 15 N.E.3d 539(citingCook,392 Ill.App.3d at 151–52, 331 Ill.Dec. 135, 910 N.E.2d at 211(Pope, J., dissenting)).“ ‘The statute then provides for credit against the sentence imposed in the subsequent charge * * * for time spent in custody on the original charges * * * that has not been credited against another sentence, so long as the conduct in the subsequent charge occurred prior to the arrest on the first charge(s).’ ”Clark , 2014 IL App (4th) 130331, ¶ 23, 383 Ill.Dec. 761, 15 N.E.3d 539(quotingCook,392 Ill.App.3d at 152, 331 Ill.Dec. 135, 910 N.E.2d at 211(Pope, J., dissenting)).

¶ 19Defendant artfully crafts an argument applying the facts of his cases to what Justice Pope described in Cook as an “inartfully drafted subsection.”Cook,392 Ill.App.3d at 151, 331 Ill.Dec. 135, 910 N.E.2d at 211(Pope, J., dissenting).Defendant refers to his arrest on the theft charge as the arrest that occurred first in time.He refers to the “prosecution” of the petition to revoke his sentence of probation on his burglary conviction as a charge...