People v. Maxey , 49 N.E.3d 507 ( 2015 )

2015 IL App (1st) 140036No. 1-14-0036
Opinion filed December 31, 2015
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 08 CR 20482
)
LAMARR MAXEY, ) The Honorable
) Timothy Joseph Joyce,
Defendant-Appellant. ) Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice Palmer concurred in the judgment and opinion.
OPINION
¶1 Defendant Lamarr Maxey pled guilty to attempted aggravated robbery and
was sentenced to 11 years with the Illinois Department of Corrections (IDOC).
No. 1-14-0036
¶2 On this direct appeal, defendant asks us to vacate as void a prior bond order.
Specifically, defendant argues that the trial court erroneously placed him on
bond during a prior appeal by the State, although Illinois Supreme Court Rule
604(a)(3) provides that "[a] defendant shall not be held in jail or to bail during
the pendency of an appeal by the State." Ill. S. Ct. R. 604(a)(3) (eff. Dec. 11,
2014). 1 As a result of this order, defendant received consecutive sentences in
another case. Section 5-8-4(d)(8) of the Unified Code of Corrections (Code)
provides that, "[i]f a person charged with a felony commits a separate felony
while on pretrial release *** then the sentences imposed upon conviction of
these felonies shall be served consecutively regardless of the order in which the
judgments of conviction are entered." 730 ILCS 5/5-8-4 (West 2014).
¶3 Defendant asks us to declare the prior bond order void and to vacate the
consecutive sentences entered in the other case, which is not before us on this
appeal. For the following reasons, we do not find defendant's arguments on this
issue persuasive.
¶4 In the alternative, defendant asks us to allow him to withdraw his guilty plea
in the case at bar, because it was allegedly based on a misunderstanding that his
guilty plea would not prevent him from subsequently challenging the prior bond
1
Illinois Supreme Court Rule 604 was amended effective December 3,
2015. However, this amendment had no effect on the sections which we quote in
this opinion.
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on appeal. Again, for the reasons explained below, we are not persuaded by
defendant's argument.
¶5 Lastly, defendant asks us to correct the mittimus to reflect the 1,045 days of
credit served. In response, the State asks us to reduce the days of credit to 951
days. Pursuant to our supreme court's decision issued last month in People v.
Castleberry, 2015 IL 116916, we must deny the State's request. We do order
the mittimus corrected to reflect the trial court's order.
¶6 BACKGROUND
¶7 Since the issue before us is purely procedural, we provide here the
procedural history of the case below.
¶8 After being indicted for attempt aggravated robbery, defendant filed a
motion to quash arrest and suppress evidence. After an evidentiary hearing, the
trial court granted defendant's motion on October 7, 2009. On November 4,
2009, the parties appeared in court and the State indicated its intent to file, on
the same day, a certificate of substantial impairment and notice of appeal.
Defense counsel "object[ed] to the filing of that" and also "ask[ed] for an appeal
bond because *** this [could] take[] two years while it pends." The parties
then agreed to a continuance to November 10, 2009. As it stated it would do,
the State filed both a notice of appeal and a certificate of substantial impairment
on November 4, 2009.
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¶9 On November 10, 2009, the parties agreed to another short continuance,
and appeared again on November 24, 2009. The State argued that the trial court
lacked jurisdiction to reconsider its ruling on defendant's motion, and that the
appeal had to proceed. Defense counsel responded: "I would ask you to set
that $10,000 I-bond,[ 2] as this case could linger for several years before
ultimately being resolved in Mr. Maxey's favor and it is punitive to hold him in
custody while waiting that verdict."
¶ 10 Defense counsel then paraphrased Illinois Supreme Court Rule 604(a)(3)
(eff. Dec. 11, 2014), stating: "The defendant shall not be held in jail or to bail
during pending [sic] a pendency of an appeal by the State or of a petition or
appeal by the State under Rule 315 A, unless there are compelling reasons for
his or her continued detention or being held for bail."
¶ 11 The assistant State's Attorney (ASA) then responded: "I think I gave you
compelling reasons." However, the trial court held: "I don't think so." The
court then instructed defense counsel: "Draft the order." To which, defense
counsel responded: "Yes, sir."
¶ 12 The half-sheet entry for November 24, 2009, states: "PD (Vern) State Files
Certificate of Impairment nunc pro tunc 11/01/09[.] [B]ail set at $10,000 I Bond
2
An I-bond is a recognizance bond.
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# 6698202 off call." An order, dated November 24, 2009, also stated: "Bail set
at $10,000 I Bond # 6698202."
¶ 13 While the State's appeal was pending, defendant was arrested in another case
(No. 11 CR 07414-01). On May 27, 2011, this court reversed the trial court's
grant of defendant's motion to quash and suppress evidence and remanded for
further proceedings in the case on appeal before us (No. 08 CR 20482). People
v. Maxey, 2011 IL App (1st) 100011. On December 20, 2012, after a bench
trial, defendant was found guilty in case No. 11 CR 07414-01 of aggravated
fleeing and eluding and residential burglary. 3 The sentencing was scheduled for
a later date.
¶ 14 Prior to defendant's sentencing in case No. 11 CR 07414-01, the parties
appeared in court in case No. 08 CR 20482 on January 10, 2013, and defense
counsel filed a motion to vacate the bond in case No. 08 CR 20482, which had
been entered several years earlier in 2009. The trial court denied the motion,
holding: "I do not think that Rule 604 *** requires, quote, compelling reasons,
unquote, for someone to be held on an I-bond or on a recognizance bond."
¶ 15 The trial court further stated: "And pending resolution of this case, if it
comes up to argue this again, should he be found guilty of this offense, you can
make whatever argument you see fit on his behalf, but I agree you are entitled
3
Case No. 11 CR 07414-01 is currently pending on appeal before another
division of this court in appeal No. 1-13-698.
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No. 1-14-0036
to have a decision now in order to make whatever decisions you want to make
hereafter."
¶ 16 Then the parties proceeded to discuss the pending plea offer from the State
and defendant's pending suppression motion. The trial court described the
State's plea offer of 11 years as "extremely generous," in light of the 6 to 30
year sentencing range and defendant's lengthy criminal history. Defense counsel
stated that defendant wanted to know if they could proceed on the suppression
motion and then, if it was denied, could he still accept the State's plea offer of
11 years. The court responded: "If he wants the 11, he can have the 11 right
now. If he wishes to reject the 11, and you're absolutely entitled to reject the
11, but we are going to fish or cut bait, which means we're going to make a
decision."
¶ 17 The parties went off the record and then the following colloquy between
defendant and the trial court ensued on the record:
"DEFENDANT: Your Honor, I just feel like, you know, the caselaw
and everything, you know, based on Supreme Court Rule 604(a)(3), you
know, I was supposed to be released unconditionally. I mean, bail is bail,
you know.
And as [the other trial judge] stated on the 24th of November when he
let me go, he said–[ASA] asked a compelling reason. He said I don't
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think so. I mean, you read the transcript. You know, I'm saying absent a
compelling reason, you know, I was entitled to unconditional release
under [Rule] 604(a)(3). And I feel like–you know, I understand that I
was out on bond and–I mean, I was out on bond, but if I got my
unconditional release, I wouldn't have–you know, I wouldn't be out on
bond. So that's why I just don't feel like, you know, a consecutive
sentence is in order, you know, based on the fact that I was out on a bond
that I shouldn't have been out on, you know.
THE COURT: I appreciate that, that is the effect of the ruling. I got
that, Mr. Maxey. I didn't not take that seriously. I understand fully its
importance–
DEFENDANT: I want to also–
THE COURT: Go ahead.
DEFENDANT: I also want to ask, you know, by me pleading guilty,
is this issue moot now? I mean, can I under [sic] blame error of the
Supreme Court Rules–I mean, am I able to bring this back up? Because I
feel this is a plain error that I was released on bond in the first place. I
mean, the Supreme Court Rule, it's clear. They say unless compelling
reasons, and the burden was on the State to submit these compelling
reasons. The Judge ruled. And you read the transcript. He said no
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No. 1-14-0036
compelling reason, I don't think so. I mean, those are the exact four
words he spoke, I don't think so. [ASA] asked him, your Honor, I think,
based on the transcripts, she said I offered compelling reasons. [The
other trial judge] pointblank said I don't think so.
So I'm saying there were no compelling reasons at the time. So based
upon no compelling reasons at the time, why am I out on bond if the rule
is clear, you know? Not to be held to bail or held pending, you know,
unless a compelling reason–compelling reasons exist. It's just the plain
language of the statute–I mean, the rule suggests that I wasn't supposed to
be held–I wasn't supposed to be held to bail.
THE COURT: I'm not going to give you legal advice about what
course you want to take. If you plead guilty, if I accept the plea of guilty
and make a finding that it is voluntarily, freely and knowingly made, I
anticipate I will go along with the sentencing recommendation that I
made, which was 11 years in the Illinois Department of Corrections for
this offense.
I am not making it consecutive to any other sentence, because there is
no other sentence that you're serving at this time. So I can't say that this
sentence will be consecutive to some other sentence. I don't do that.
You're not serving some other sentence at this time that I will say this
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No. 1-14-0036
sentence will be concurrent or this sentence will be consecutive. I'm just
going to sentence you today.
DEFENDANT: Oh, okay. One more thing. By me raising this
motion here in your courtroom, that doesn't prevent me from raising it
also in [case No. 11 CR 07414-01], does it?
THE COURT: I'm not giving you any legal advice. What do you
want to do?
DEFENDANT: I'm going to sign the paper.
THE COURT: Excuse me?
DEFENDANT: I will sign the paper.
THE COURT: You mean you wish to plead guilty?
DEFENDANT: Yes."
¶ 18 Defendant then pled guilty. Prior to sentencing, the trial court asked
defendant if there was "[a]nything [he] wished to say," and defendant replied:
"I would just like to reiterate, you know, I feel like I shouldn't have been held to
bond on this case. It was an error for me to be put out on bond. Basically, I was
eligible for unconditional release." The trial court then sentenced defendant to
11 years with IDOC, plus three years of mandatory supervised release, with
credit for 1,044 days served. The trial court then informed defendant of his
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appeal rights, stating that he had to first file in the trial court a written motion
within 30 days if he wished to withdraw his guilty plea.
¶ 19 Thus, defendant pled guilty and was sentenced in the case at bar on January
10, 2013. Less than 30 days later, on February 5, 2013, defendant filed a pro se
motion to withdraw his guilty plea in case no. 08 CR 20482. Defendant raised a
number of issues, including that he received ineffective assistance of counsel
"in that he was mislead [sic] into believing that he would be able to appeal
various pre-trial rulings to the appellate court regardless of his guilty plea which
he knows 'now' to be untrue." He also stated that his counsel was "ineffective
when on January 10, 2015, he sought before *** the circuit court Defendant's
Motion to Vacate Prior Bond knowing very well that he had requested Nov. 24,
2009 this bond due to his lack of knowledge and his apprehension of Supreme
Court Rule 604(a)(3) on the same day (see court transcript for that day). He was
also ineffective *** in that he could have raised my issue about defendant's
bond pursuant to Ill. Supreme Court Rule 604(c) Appeals From Bail Orders by
Defendant Before Conviction which then would have been appealable to the
Appellate Ct."
¶ 20 On February 27, 2013, in case No. 11 CR 07414-01, defendant was
sentenced to 20 years and 3 years, respectively, for residential burglary and
aggravated fleeing and eluding. These two sentences ran concurrently to each
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other but consecutive to the 11 year sentence imposed in the case at bar (No. 08
CR 20482).
¶ 21 In response to defendant's motion to vacate his plea, the trial court appointed
counsel, and appointed counsel filed a supplemental motion on September 5,
2013. The supplemental motion made several claims, including that defendant's
guilty plea was based on a misapprehension of the law, in that he did not
understand that his guilty plea would bar him from appealing the denial of his
motion to vacate his prior bond. On October 3, 2015, counsel filed an
"Addendum to Supplemental Motion to Vacate Guilty Plea," which added
claims that are not at issue on this appeal.
¶ 22 On December 17, 2013, the trial court denied defendant's motion to vacate
his plea, finding that his plea was voluntarily made. The court observed:
"THE COURT: There is nothing that the Court said or did that would
have led Mr. Maxey to believe he had a right to appeal the propriety of
rulings in that regard.
And as the State points out, and as I think my questions alluded to
earlier, the question of whether Mr. Maxey was on bond or not at the
time he committed the second offense was completely, totally, absolutely
irrelevant then and irrelevant now because this was the first case that got
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resolved. So the issue of whether he was on bond or not is simply not an
[sic] justiciable issue for this Court to resolve, not then and not now."
¶ 23 The trial court also granted defendant's motion to correct the mittimus, to
which the State had no objection. The court granted defendant an additional
day's credit, for a total of 1,045 days considered served, which was entered
nunc pro tunc to the date of the guilty plea.
¶ 24 On December 17, 2013, defendant filed a notice of appeal in the case at bar
(No. 08 CR 20482) appealing the trial court's denial of defendant's motion to
withdraw his guilty plea.
¶ 25 The notice of appeal in case No. 11 CR 07414-01 was filed on March 9,
2013. Over two years later, on October 13, 2015, the State filed a motion in that
appeal to consolidate it with the appeal now before us. On October 19, 2015,
a different division of this court denied the State's motion to consolidate. On
November 12, 2015, that division heard oral argument, but it has not yet issued
a decision.
¶ 26 ANALYSIS
¶ 27 On this direct appeal, defendant raises three claims: (1) that the prior
order granting defendant an I-bond during a prior appeal must be vacated as
void; (2) that the trial court should have allowed defendant to withdraw his
guilty plea because he did not understand that his guilty plea would preclude
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No. 1-14-0036
him from his challenging his bond on appeal; and (3) that the mittiums should
be corrected. For the reasons explained below, we order the mittimus corrected.
However, we do not find defendant's other arguments persuasive and we affirm
the defendant's judgment and conviction.
¶ 28 I. The Bond Order
¶ 29 First, defendant asks us to vacate as void the bond order issued during a
prior appeal in this case, and to vacate the consecutive sentences that were
imposed in a different case as a result of the bond order.
¶ 30 In response, the State argues that the sole procedure for vacating a bond
order is set forth in Supreme Court Rule 604, and the time for appealing the
order has passed. The rule specifically provides that an appeal "may be taken at
any time before conviction" (emphasis added) (Ill. S. Ct. R. 604(c) (eff. Dec.
11, 2014)), and there is no dispute that defendant did not appeal the bond prior
to conviction.
¶ 31 The issue of whether the applicable Supreme Court Rules permit the appeal
in this case is a question of statutory interpretation, which we review de novo.
In re Michael D., 2015 IL 119178, ¶ 9. "The same rules of construction apply to
both" statutes and Supreme Court Rules. In re Michael D., 2015 IL 119178, ¶ 9.
Our primary objective is to give effect to the drafters' intent, which is best
indicated by the plain language of the statue. In re Michael D., 2015 IL 119178,
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¶ 9. De novo review means that the reviewing court performs the same analysis
that a trial judge would perform. A.M. Realty Western L.L.C. v. MSMC Realty
L.L.C., 2012 IL App (1st) 121183, ¶ 37.
¶ 32 Supreme Court Rule 604(c) provides in relevant part:
"(1) Appealability of Order With Respect to Bail. Before conviction a
defendant may appeal to the Appellate Court from an order setting,
modifying, revoking, denying, or refusing to modify bail or the
conditions thereof. As a prerequisite to appeal the defendant shall first
present to the trial court a written motion for the relief to be sought on
appeal. ***
(2) Procedure. The appeal may be taken at any time before
conviction by filing a verified motion for review in the Appellate Court.
***" Ill. S. Ct. R. 604(c) (eff. Dec. 11, 2014).
¶ 33 There is also no dispute that defendant did not utilize Rule 604(c)'s
procedure for appealing an order setting "bail or the conditions thereof." Ill. S.
Ct. R. 604(c) (eff. Dec. 11, 2014). Defendant's primary argument to this court is
that the I-bond in this case constituted "bail" in violation of another part of Rule
604, namely subsection (a)(3), which prohibits holding defendant "to bail
during the pendency of an appeal by the State." Ill. S. Ct. R. 604(a)(3) (eff.
Dec. 11, 2014). If defendant is correct and the I-bond constituted "bail" within
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No. 1-14-0036
the meaning of Rule 604(a)(3), then this same rule also required him to file his
motion for review "before conviction" (Ill. S. Ct. R. 604(c) (eff. Dec. 11,
2014)). If defendant is not correct and the I-bond did not constitute "bail" as the
State contends, then his claim fails on the merits, because he then would not
have been "held to bail" in violation of the rule. Ill. S. Ct. R. 604(a)(3) (eff.
Dec. 11, 2014). Either way, his claim fails. See Maksym v. Board of Election
Commissioners, 242 Ill. 2d 303, 322 (2011) (" '[W]here the same, or
substantially the same, words or phrases appear in different parts of the same
statute they will be given a generally accepted and consistent meaning, where
the legislative intent is not clearly expressed to the contrary.' " (quoting Moran
v. Katsinas, 16 Ill. 2d 169, 174 (1959))); Chultem v. Ticor Title Insurance Co.,
2015 IL App (1st) 140808, ¶ 33 (" 'use of the same words or phrases in different
sections of [a] statute should be given a consistent meaning' " (quoting Clardy
v. Rapistan Division of Lear Siegler, Inc., 254 Ill. App. 3d 1066, 1070 (1993))).
¶ 34 In response, defendant argues, first, that "[t]he State contradicts itself on this
point, since it claims elsewhere that the bond determination did not set 'bail.'
[Citation.] The State then faults [defendant] for not pursuing an avenue that, by
the State's logic, was unavailable to him." However, as we explained above, it
is the defendant's logic which bars his claim. If we agree with defendant that
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the I-bond did, in fact, constitute bail for purposes of Rule 604, then we must
also conclude that his claim was not timely pursuant to Rule 604.
¶ 35 Defendant cites in support People v. Beaty, 351 Ill. App. 3d 717, 723 (2004),
which stated, without any citation or support, that: "Orders appealable under
Supreme Court Rule 604(c)(1)–orders 'setting, modifying, revoking, denying, or
refusing to modify bail or the condition thereof' (188 Ill. 2d R. 604(c)(1))–are
different from an order applying the standard set forth in Supreme Court Rule
604(a)(3)–an order which denies the unconditional release pending an appeal
that Supreme Court Rule normally affords." Even if we found this unsupported
dicta persuasive, its language does not apply to the case at bar. Unlike Beaty,
this is not a case where the trial court "denie[d]" defendant "the unconditional
release" which he sought. Beaty, 351 Ill. App. 3d at 723; see also Beaty, 351
Ill. App. 3d at 720 (defense counsel filed a motion for defendant's immediate
release which the trial court denied based on a finding of compelling reasons).
By contrast, in the case at bar, the trial court granted defendant's request for an
I-bond and directed defense counsel to draft the order.
¶ 36 In addition, Beaty was in a different procedural posture from the case at
bar. In Beaty, the defendant sought to appeal his bond order as part of the
State's interlocutory appeal from the adverse evidentiary ruling (Beaty, 351 Ill.
App. 3d at 720), and the Beaty court permitted the defendant to do that (Beaty,
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351 Ill. App. 3d at 723). By contrast, in the case at bar, defendant asks us to
consider the validity of his bond when the appeal to which it pertained is now
over. For all these reasons, we do not find Beaty apposite to our case.
¶ 37 Defendant argues further that, even if the procedure outlined in Rule 604(c)
applied to his claim, "nothing in the rules for direct appeals bars challenges to
bond determinations," and defendant cites in support the Illinois Supreme
Court's decision in People v. Bailey, 167 Ill. 2d 210, 237-38 (1995), where the
court did discuss a bail issue on direct appeal. However, in Bailey, the supreme
court acknowledged that, although the defendant's claims about the trial court's
denial of bail may have been both untimely under Rule 604 and moot, it
decided to address his claims because addressing them would advance the
"public interest" in clarifying whether a particular statue was constitutional.
Bailey, 167 Ill. 2d at 238. In the case at bar, defendant makes no argument that
deciding his claim will advance the public interest.
¶ 38 The State claims that, since defendant failed to follow the procedure outlined
in Rule 604(c), we lack jurisdiction to consider his claim. However, we are not
barred from considering an order that was a necessary step to the order at issue
before us (Filliung v. Adams, 387 Ill. App. 3d 40, 49 (2008)); and our supreme
court in Bailey exercised its discretion to hear defendant's bail issue, even
though it may have been untimely under Illinois Supreme Court Rule 604(c).
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Bailey, 167 Ill. 2d at 238. Thus, we conclude that we have jurisdiction.
However, we are not persuaded, as our supreme court was in Bailey, that there
is good reason to consider defendant's untimely claim in this appeal. See Bailey,
167 Ill. 2d at 238. Defendant's ultimate goal is to vacate the consecutive
sentences ordered in another case—not in the case at bar. In essence, we are
being asked to render an advisory opinion, which would have no impact in the
case at bar, but which could effect the sentences in another case currently
pending on direct appeal. In re Alfred H.H., 233 Ill. 2d 345, 351 (2009) (as a
general rule, Illinois courts do not render advisory opinions or consider issues
where the outcome of the case will not be affected regardless of how those
issues are decided). Under these unusual circumstances, we do not find good
cause in this case to overlook the untimeliness of defendant's motion to vacate
his bond, which was filed several years late. Our decision here, however, does
not bind the hands of another court considering different cases or claims.
¶ 39 Defendant argues that the bond order is void and may be attacked at any
time. Previously our supreme court recognized a "type of voidness challenge"
which was "a challenge to a sentence that did not conform to the applicable
sentencing statute." People v. Thompson, 2015 IL 118151, ¶ 33. "This type of
challenge [was] based on the 'void sentence rule' from People v. Arna, 168 Ill.
2d 107, 113 (1995), holding that a sentence that does not conform to a statutory
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requirement is void." Thompson, 2015 IL 118151, ¶ 33. However, last month
and after the briefs were filed in this appeal, 4 our supreme court "abolished the
void sentence rule." Thompson, 2015 IL 118151, ¶ 33 (citing People v.
Castleberry, 2015 IL 116916, ¶ 19). "Consequently, that type of challenge is
no longer valid." Thompson, 2015 IL 118151, ¶ 33.
¶ 40 II. Withdraw Guilty Plea
¶ 41 In the alternative, defendant asks this court to allow him to withdraw his
guilty plea because it was based on a misunderstanding. He claims that he did
not understand that his plea could preclude him from challenging the validity of
his prior bond on this appeal.
¶ 42 "Leave to withdraw a plea of guilty is not granted as a matter of right, but as
required to correct a manifest injustice under the facts involved." People v.
Spriggle, 358 Ill. App. 3d 447, 450 (2005); see also People v. Hughes, 2012 IL
112817, ¶ 32 ("A defendant has no absolute right to withdraw his guilty plea.").
Generally, the decision whether to allow a defendant to withdraw a guilty plea
pursuant to Supreme Court Rule 604(d) is left to the sound discretion of the trial
court and will not be reversed on appeal absent an abuse of that discretion.
Hughes, 2012 IL 112817, ¶ 32. "An abuse of discretion occurs only when the
4
The reply brief in the instant appeal was filed November 10, 2015; and our
supreme court's opinion in Castleberry, 2015 IL 116916, was issued just nine days
later, on November 19, 2015.
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trial court's decision is arbitrary, fanciful, or unreasonable or where no
reasonable person would take the view adopted by the trial court." Seymour v.
Collins, 2015 IL 118432, ¶ 41.
¶ 43 A defendant may seek to withdraw his or her guilty plea on the grounds that
the plea was entered based on a misapprehension of fact or law, or if there is a
doubt of the guilt of the accused and the ends of justice would better be served
by submitting the case to a trial. Hughes, 2012 IL 112817, ¶ 32; Spriggle, 358
Ill. App. 3d at 450-51. A defendant's misapprehension of the law is well
recognized as a reason for vacating a guilty plea. People v. Belcher, 199 Ill. 2d
378, 383 (2002). " ' In the absence of substantial objective proof showing that a
defendant's mistaken impressions were reasonably justified, subjective
impressions alone are not sufficient grounds on which to vacate a guilty plea.' "
Spriggle, 358 Ill. App. 3d at 451 (quoting People v. Artale, 244 Ill. App. 3d
469, 475 (1993)). "The defendant bears the burden of proving that his or her
mistaken impression was objectively reasonable under the circumstances
existing at the time of the plea." (Emphasis in original.) Spriggle, 358 Ill. App.
3d at 451.
¶ 44 In the case at bar, the record simply does not bear out defendant's claim that
he was suffering from a misunderstanding. The record shows that, during the
plea proceeding and prior to the plea, defendant expressed the issue, quite
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thoughtfully and articulately. He asked the court whether a guilty plea would
preclude him from pursuing the bond issue in the future, and the court replied
that it would not provide legal advice. Defendant then asked specifically: "By
me raising this motion here in your courtroom, that doesn't prevent me from
raising it in [case No. 11 CR 07414-01], does it?" Again, the trial court
repeated: "I'm not giving you any legal advice." Defendant, however, decided
to proceed without this knowledge in order to preserve the benefit of his bargain
with the State. The record simply does not bear out defendant's claim that he
was suffering from a misunderstanding, and thus we cannot find that the trial
court abused its discretion.
¶ 45 III. The Mittimus
¶ 46 On appeal, defendant asks us to correct the mittimus to reflect the 1,045 days
served ordered by the trial court. " 'Although a written order of the circuit court
is evidence of the judgment of the circuit court, the trial judge's oral
pronouncement is the judgment of the court.' " People v. Carlisle, 2015 IL App
(1st) 131144, ¶ 87 (quoting People v. Whalum, 2012 IL App (1st) 110959,
¶ 41). " ' "When the oral pronouncement of the court and the written order are in
conflict, the oral pronouncement controls." ' " People v. Carlisle, 2015 IL App
(1st) 131144, ¶ 87 (quoting Whalum, 2012 IL App (1st) 110959, ¶ 41 (quoting
People v. Smith, 242 Ill. App. 3d 399, 402 (1993))). Thus, we order the
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mittimus corrected to reflect the oral pronouncement of the trial court of 1,045
days served.
¶ 47 On appeal, the State asks us to reduce the number of days served to 951 days
served. In effect, the State is appealing the sentencing order, which Illinois
Supreme Court Rules do not permit it to do. Last month, our supreme court
held in Castleberry: "Illinois Supreme Court Rule 604(a) sets forth with
specificity those instances where the State may appeal in a criminal case. The
rule does not permit the State to appeal a sentencing order." Castleberry, 2015
IL 116916, ¶ 21 (discussing Ill. S. Ct. R. 604(a) (eff. July 1, 2006)). "[B]ecause
the rule does not authorize the appeal of sentencing orders, it follows that the
State could not have cross-appealed in the appellate court on this issue, 'since a
reviewing court acquires not greater jurisdiction on cross-appeal than it could
on appeal.' " Castleberry, 2015 IL 116916, ¶ 21 (quoting People v. Farmer, 165
Ill. 2d 194, 200 (1995)).
¶ 48 In Castleberry, as in the case at bar, the State "did not file either an appeal or
a cross-appeal in the appellate court but 'simply responded to a claim raised by
defendant.' " Castleberry, 2015 IL 116916, ¶ 22 (quoting the State's brief in
Castleberry). In Castleberry, the State argued that "the appellate court could,
therefore, properly address its argument." Castleberry, 2015 IL 116916, ¶ 22.
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No. 1-14-0036
The supreme court responded: "This is incorrect." Castleberry, 2015 IL
116916, ¶ 22. The court explained:
"As the appellee in the appellate court, the State could, without filing a
cross-appeal, raise any argument of record in support of the circuit court's
judgment. [Citations.] However, an appellee who does not cross-appeal
may not 'attack the decree with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary.' [Citation.]
The State's argument *** was not brought to sustain the judgment of
the circuit court. It was instead, a new and different issue brought with a
view to 'lessening the rights' of defendant. The State's argument was a de
facto cross-appeal *** and, as such, was impermissible." Castleberry,
2015 IL 116916, ¶¶ 22-23.
¶ 49 As a result, the State lacked the authority to ask for a reduction in the credit
for days served which would have, in effect, appealed the trial court's
sentencing order. See also Castleberry, 2015 IL 116916, ¶ 24 ("the authority
granted under Rule 615(b)" to the appellate courts to modify sentences "is
limited to 'reduc[ing] the punishment imposed by the trial court' " (quoting Ill.
23
No. 1-14-0036
S. Ct. R. 615(b)(4))).
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, we affirm the judgment and conviction. However,
we order the mittimus corrected to reflect the 1,045 days of credit ordered by
the trial court.
¶ 52 Affirmed; mittimus corrected.
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