People v. Winston
| Decision Date | 04 November 2020 |
| Docket Number | No. 2-19-0235,2-19-0235 |
| Citation | 2020 IL App (2d) 190235 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CEDRIC N. WINSTON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Stephenson County.
Honorable Michael Paul Bald, Judge, Presiding.
¶ 1 Held: The trial court did not err in denying defendant's motion to correct the mittimus. Also, defendant's trial counsel was not ineffective for withdrawing his motion to reconsider defendant's sentence for second-degree murder. Therefore, we affirm.
¶ 2 Pursuant to a plea agreement with the State, defendant, Cedric N. Winston, pleaded guilty to various charges, some which dated from 2012 and the rest which dated from 2014. The length of all of the sentences was negotiated except for that of second-degree murder, for which the trial court sentenced defendant to 17 years' imprisonment, with all sentences to run concurrently. On appeal, defendant argues that for his conviction of second-degree murder, he should receive credit for time spent in prison beginning from his 2012 arrest, even though he was not charged with murder until 2014. He also argues that defense counsel was ineffective for withdrawing his motion to reconsider defendant's second-degree murder sentence, based on the mistaken belief that defendant would first have to move to withdraw his guilty plea. We affirm.
¶ 4 According to the factual basis presented by the State, on September 23, 2012, defendant argued with LaShawn Thurman at a house party. Defendant and at least three other people later exchanged gunfire outside. Thurman saw defendant shooting at him, and a bullet grazed Thurman's thigh. The police gathered .40-caliber, .45-caliber, and 9-millimeter shell casings from the scene. Bystander Victoria Strong was shot in the leg in the crossfire from either a .38-caliber bullet or a 9-millimeter bullet, and she died from her injury on September 29, 2012. On September 30, 2012, Natasha Ellis, the mother of defendant's child, received an accidental voicemail message from defendant containing a recorded conversation between him and his father. In the recording, defendant stated that the person he wanted to kill was lucky to only get grazed in the thigh. Defendant stated that he got rid of the bullet casings and hid the guns, and they discussed sticking to a story. Defendant's father would testify to having this conversation. Ellis would also testify that shortly after the shooting, defendant told her that he chased Thurman and shot at him.
¶ 5 On October 20, 2012, the police responded to a domestic complaint involving defendant and Ellis. Ellis told the police that defendant had given her a red bag containing guns and that she stored the bag in her apartment. The police obtained a warrant and found four guns in a bag, namely three semi-automatic pistols and a 9-millimeter "semi-automatic/fully automatic rifle." Defendant's latent fingerprints were found on four gun magazines. Based on this discovery,defendant was charged in case number 12-CF-299 with four counts of possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)).
¶ 6 On November 28, 2012, the police executed a search warrant on defendant's residence and found a holster for a .32 or .38-caliber firearm, two "speedloaders," and .38-caliber rounds. As a result of this search, defendant was charged in case number 12-CF-311 with possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)). On the same date, the police arrested defendant at his workplace and found cocaine on his person, for which he was charged with possession of a controlled substance (720 ILCS 570/402(c) (West 2012)) in case number 12-CF-310. Defendant remained in custody from November 28, 2012, on.
¶ 7 Much later, on March 4, 2014, defendant was charged by indictment in case number 14-CF-55 with first-degree murder (720 ILCS 5/9-1(a)(3) (West 2012)), attempted first-degree murder (720 ILCS 5/8-4(a) (West 2012)), aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2012)), and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)) for the incident on September 23, 2012.
¶ 8 On June 19, 2015, following an Illinois Supreme Court Rule 402 (eff. July 1, 2012) conference, the State amended the charge of first-degree murder to second-degree murder (720 ILCS 5/9-2 (West 2012)). Defendant waived a preliminary hearing on the second-degree murder charge, though the trial court admonished defendant of the possible penalties. The parties then proceeded to recite their agreement regarding the charges for all four underlying cases. The parties agreed to fully negotiated pleas of three years' imprisonment in case number 12-CF-310; three years' imprisonment in case number 12-CF-311; and, for case number 12-CF-299, five years' imprisonment for the first three counts and six years' imprisonment for the fourth count. In case number 14-CF-55, the parties agreed that the charge of first-degree murder would be amended tosecond-degree murder, that defendant would plead guilty, and that the trial court would determine his sentence. They agreed to fully-negotiated pleas of six years' imprisonment each for attempted murder and for aggravated discharge, and five years' imprisonment for possession of a weapon by a felon. The parties agreed that all of the sentences would run concurrently.
¶ 9 A sentencing hearing took place on September 3, 2015, and the trial court entered the agreed-upon sentences. For the plea to second-degree murder, the trial court sentenced defendant to 17 years' imprisonment, concurrent with the other sentences.
¶ 10 Defendant filed a motion to reconsider the 17-year sentence on October 1, 2015.
¶ 11 Subsequently, on June 30, 2016, defendant filed a motion to correct the mittimus. He noted that the mittimus in 14-CF-55 credited him for time served dating back to March 4, 2014, when he was charged with murder. However, he argued that he should be credited for time served since November 28, 2012, when he was first taken into custody, as reflected in the presentence report.
¶ 12 A hearing on the motion took place on July 7, 2016. Defense counsel argued that at the time of sentencing, there was no notice that defendant would not receive credit for time served since his arrest, thereby violating defendant's due process rights. He argued that although defendant was not charged with murder until March 2014, he was "theoretically in custody" for that charge in November 2012, as shown by the fact that the police questioning at the time focused on the shooting rather than the guns he was charged with possessing. Defense counsel argued that defendant was further entitled to the credit under section 5-4.5-100 of the Unified Code of Corrections (730 ILCS 5/5-4.5-100 (West 2016)) and People v. Hernandez, 345 Ill. App. 3d 163 (2004).
¶ 13 The State responded that the date listed on the presentence investigation report was not controlling, nor was there any agreement that defendant would get extra custody credit beginningin November 2012. The State argued that there was no factual connection between the crimes that defendant was initially arrested for and the charge of second-degree murder. The State pointed out that defendant was getting credit for the time spent in custody since November 2012 for case numbers 12-CF-310, 12-CF-311, and 12-CF-299. The State asserted that the statute did not pertain to individuals in custody for unrelated offenses and that Hernandez was distinguishable.
¶ 14 The trial court denied defendant's motions on August 18, 2016. It stated that Hernandez was inapposite because that case involved the same underlying charge for both periods of time that the defendant was in custody. In contrast, here defendant was first charged with murder on March 4, 2014, and there were no previous charges related to that prosecution. Another case that the parties had mentioned, People v. Kane, 136 Ill. App. 3d 1030 (1985), was distinguishable because it involved a petition to revoke probation.1 The trial court further ruled that the 17-year sentence was appropriate.
¶ 15 Defendant appealed, and on April 27, 2018, this court granted his unopposed motion for a summary remand. People v. Winston, No. 2-16-0728. We remanded the cause for the filing of a valid Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) certificate; the opportunity to file a new motion to withdraw the guilty plea and/or reconsider the sentence; and a new motion hearing. Id.
¶ 16 Defendant filed an amended motion to reconsider the sentence and/or correct the mittimus on January 2, 2019. A hearing on the motion took place on March 13, 2019. At the beginning of the hearing, defense counsel stated that he was no longer requesting that the trial court reconsiderthe 17-year sentence because pursuant to People v. Johnson, 2019 IL 122956, defendant would first have to file a motion to withdraw his guilty plea. Defense counsel stated:
Defendant replied, "That's correct."
¶ 17 Regarding the mittimus, defense counsel argued that because defendant was arrested in 2012 and questioned about the murder, it was disingenuous to say that he was not entitled to credit beginning the day he was arrested. Defense counsel further argued...
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