People v. Washington , 2019 IL App (1st) 172372 ( 2019 )

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Appellate Court Date: 2019.08.12
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People v. Washington, 2019 IL App (1st) 172372
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MALVIN WASHINGTON, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-17-2372
Filed June 10, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 04-CR-21005; the
Review Hon. Ursula Walowski, Judge, presiding.
Judgment Affirmed as modified.
Counsel on Alison R. Flaum and Jeffrey Urdangen, of Bluhm Legal Clinic, of
Appeal Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Joseph Alexander, and Daniel Piwowarczyk, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE WALKER delivered the judgment of the court, with
opinion.
Justices Pierce and Griffin concurred in the judgment and opinion.
OPINION
¶1 Defendant Malvin Washington was convicted in the circuit court of Cook County of the
Class 1 felony of second degree murder and the Class X felony of aggravated battery with a
firearm, and he was sentenced to consecutive terms of 15 years for the second degree murder
and 10 years for the aggravated battery with a firearm. Following his sentencing, Malvin asked
the trial court to award sentencing credit multiplied by a factor of 1.5 for time spent
participating in qualified educational, vocational, and other programs while in the Cook
County Department of Corrections (CCDOC). He sought enhanced programming credit
against his sentence for second degree murder pursuant to section 3-6-3 of the Unified Code
of Corrections (Code). 730 ILCS 5/3-6-3 (West 2016). The trial court denied the enhanced
programming credit in reliance on People v. Duke, 305 Ill. App. 3d 169 (1999) (holding that
inmates serving consecutive sentences for a Class X felony and some other, non-Class X felony
are ineligible for programming credit during the entire term of imprisonment). Malvin appeals
from the trial court’s order denying enhanced programming credit. We hold that section 3-6-3
does not prohibit awarding enhanced programming credit for the part of a consecutive sentence
that punishes an inmate for a crime not specifically listed as cause for denying the enhanced
programming credit. Accordingly, we reverse the trial court’s denial of Malvin’s request for
enhanced programming credit on his second degree murder conviction.
¶2 I. BACKGROUND
¶3 On March 21, 2004, cars driven by Antonio Washington and Antoine Lee collided. People
from the neighborhood converged on the accident scene. Antoine’s uncle, Ronald Lee,
physically confronted Antonio’s cousin, Malvin. Malvin shot Ronald three times. A stray bullet
killed Marquis Reed.
¶4 Prosecutors charged Malvin with the first degree murder of Reed and aggravated battery
with a firearm for the injury to Ronald. At the trial, Malvin testified that he acted in self-
defense, but a jury found Malvin guilty as charged. The appellate court ordered a new trial,
and the Illinois Supreme Court affirmed the appellate court’s judgment. People v. Washington,
2012 IL 110283. Malvin remained incarcerated as the case worked its way through the appeals
process to a new trial. He used his time productively, earning a high school equivalency
diploma and accumulating more than 5000 hours in educational programs, much of it for
tutoring other inmates. He also completed three classes at DePaul University.
¶5 On retrial, a jury found Malvin guilty of second degree murder and aggravated battery with
a firearm. Witnesses at the sentencing hearing spoke highly of Malvin’s educational
achievements while in the CCDOC programs. One CCDOC official testified that Malvin
accomplished the rare feat of having no disciplinary infractions despite his long time in
CCDOC. Another CCDOC official testified to the trust accorded to Malvin.
¶6 The trial judge imposed sentences of 10 years for aggravated battery and 15 years for
second degree murder, with the sentences to run consecutively. Malvin asked the trial court to
award credit against his sentence for programming days while in the custody of the CCDOC.
The trial court, following Duke, 305 Ill. App. 3d 169, held that Malvin was not entitled to any
enhanced programming credit because he was convicted of a Class X felony. Malvin now
appeals.
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¶7 II. ANALYSIS
¶8 On appeal, Malvin argues the trial court erred when it denied his enhanced programming
credit pursuant to the version of section 3-6-3 (730 ILCS 5/3-6-3 (West 2016)) in place at the
time of his sentencing. Malvin does not challenge the sufficiency of the evidence supporting
his convictions. We review de novo the issue of statutory interpretation. People v. Whitney,
188 Ill. 2d 91, 98 (1999).
¶9 We note that the General Assembly amended section 3-6-3(a)(4) to extend enhanced
programming credit to prisoners convicted of Class X felonies, but the General Assembly
specifically limited the amount of credit available to prisoners already serving sentences when
the amendment went into effect. The Code now provides, “sentence credit under paragraph
*** (4) *** of this subsection (a) may be awarded to a prisoner who is serving a sentence for
an offense described in paragraph (2), (2.3), (2.4), (2.5), or (2.6) for credit earned on or after
the effective date of this amendatory Act.” Pub. Act 100-3 (eff. Jan. 1, 2018) (amending 730
ILCS 5/3-6-3(a)(4.7)). The public act sets its effective date as January 1, 2018. Malvin seeks
enhanced programming credit for programs completed prior to the amendment. Thus, the
amendment does not apply to the facts here.
¶ 10 Malvin does not seek any programming credit against his sentence as a Class X offender.
Malvin argues, however, that he should be awarded enhanced programming credit against his
second degree murder sentence.
¶ 11 Prior to the January 2018 amendment, section 3-6-3 of the Code restricted the amount of
credit awarded to “a prisoner serving a sentence for *** aggravated battery with a firearm” to
“no more than 4.5 days of sentence credit for each month of his or her sentence of
imprisonment.” 730 ILCS 5/3-6-3(a)(2)(ii) (West 2016). Section 3-6-3(a)(2.1) provided that,
“[f]or all offenses, other than those enumerated in subdivision (a)(2)(i), (ii), or (iii) *** the
rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall
receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730
ILCS 5/3-6-3(a)(2.1) (West 2016). The parties agree that second degree murder qualifies as an
offense not enumerated in subsections (a)(2)(i), (ii), or (iii).
¶ 12 Section 3-6-3(a)(4) permits awarding enhanced programming credit provided for in section
3-6-3(a)(2.1) if the prisoner participates in certain programs while in CCDOC, including the
educational programs in which Malvin participated. Section 3-6-3(a)(4) provides:
“The rules and regulations shall also provide that the sentence credit accumulated and
retained under paragraph (2.1) of subsection (a) of this Section by any inmate during
specific periods of time in which such inmate is engaged full-time in *** educational
programs *** shall be multiplied by a factor of *** 1.50 for program participation ***.
*** [S]entence credit, subject to the same offense limits and multiplier provided in this
paragraph, may be provided to an inmate who was held in pre-trial detention prior to
his or her current commitment to the Department of Corrections and successfully
completed *** educational program[s] *** provided by the county department of
corrections or county jail. Calculation of this county program credit shall be done at
sentencing *** and shall be included in the sentencing order.” 730 ILCS 5/3-6-3(a)(4)
(West 2016).
The section restricted the programming credit: “no inmate shall be eligible for the additional
sentence credit under this paragraph (4) *** if convicted of *** a Class X felony.” 730 ILCS
5/3-6-3(a)(4) (West 2016).
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¶ 13 The Fourth District Appellate Court of Illinois addressed a similar issue as applied to the
Illinois Department of Corrections (IDOC) in Duke, 305 Ill. App. 3d 169. The trial court in
Duke sentenced Mr. Duke to 35 years for a Class X felony and to 30 months for a Class 3
felony, with the sentences to run consecutively. Mr. Duke participated in prison programs and
sought programming credit against the portion of his sentence that punished him for a Class 3
felony. Mr. Duke filed a writ of mandamus because the IDOC found that Mr. Duke’s Class X
felony conviction made him ineligible for programming credit against his sentences under
section 3-6-3(a)(4) (730 ILCS 5/3-6-3(a)(4) (West 2016)). The trial court issued the mandamus
ordering the IDOC to consider Mr. Duke eligible for enhanced programming credit against the
portion of his sentence attributable to the Class 3 felony conviction, and the IDOC appealed.
The appellate court held that the Code disallowed programming credit for any portion of Mr.
Duke’s sentence. In reversing the trial court, the Duke court relied on section 3-6-3(b), which
provided, “[w]henever a person is or has been committed under several convictions, with
separate sentences, the sentences shall be construed under [s]ection 5-8-4 [of the Code] in
granting and forfeiting of sentence credit.” 730 ILCS 5/3-6-3(b) (West 2016). Section 5-8-4(e)
provided:
“[i]n determining the manner in which consecutive sentences of imprisonment *** will
be served, [the IDOC] shall treat the defendant as though he or she had been committed
for a single term subject to each of the following incidents:
***
(4) The defendant shall be awarded credit against the aggregate maximum term and
the aggregate minimum term of imprisonment for all time served in an institution ***
at the rate specified in Section 3-6-3 [of this Code].” 730 ILCS 5/5-8-4(g) (West 2016).
¶ 14 The Duke court found “a clear rule that the [IDOC] must treat consecutive sentences as a
‘single term’ of imprisonment for the purposes of awarding any good-time credit” and
concluded that the IDOC must award credit against the combined sentences at a single rate for
the entire combined term of imprisonment and the IDOC must use only the credit rate for the
crime subject to the harsher punishment. (Emphasis omitted.) Duke, 305 Ill App. 3d at 173.
The Duke court held that “the straightforward application of this rule requires the Director to
treat an inmate serving consecutive sentences for a Class X felony and some other, non-Class
X felony as ineligible for enhanced good-time credit during the entire ‘single term’ of
imprisonment.” Id.
¶ 15 The Duke court’s analysis does not apply to enhanced programming credit while in the
CCDOC because the issue in Duke was whether Mr. Duke was eligible for programming credit
while in the custody of the IDOC. The Duke rule conflicts with our supreme court’s
observation that “[o]ur jurisprudence *** makes it clear that consecutive sentences do not
constitute a single sentence and cannot be combined as though they were one sentence for one
offense. Each conviction results in a discrete sentence that must be treated individually.”
People v. Carney, 196 Ill. 2d 518, 530 (2001). The rule in Duke also undermines public policy
because educational programs, prison employment, and other skills learned while incarcerated
promote habits and responsibility that contribute to more cooperative inmates and ultimately
lower levels of recidivism.
¶ 16 We hold, in accord with the courts’ expectations and IDOC practice (see 20 Ill. Adm. Code
107.120 (2019)), that the reference in section 5-8-4 to “treat[ing] consecutive sentences as a
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‘single term’ of imprisonment” does not preclude awarding credits at differing rates against
different sentences under the provisions of sections 3-6-3(a)(2) and (a)(2.1).
¶ 17 The State raises an argument not addressed in Duke. The State asserts that the applicable
version of section 3-6-3(a)(4) provided that “no inmate shall be eligible for the additional
sentence credit under this paragraph (4) *** if convicted of *** a Class X felony.” 730 ILCS
5/3-6-3(a)(4) (West 2016). The State contends that, because the trial court found Malvin guilty
of a Class X felony, he can never become eligible for additional credit under section 3-6-
3(a)(4), because he will always count as an inmate convicted of a Class X felony.
¶ 18 We find the statute ambiguous. The clause “an inmate convicted of a Class X felony” could
refer to any incarcerated person who has ever had a Class X felony conviction on his record, it
could refer to a prisoner serving a sentence for a Class X felony, or it could refer to a prisoner
who is serving a sentence for a Class X offense and a sentence for a non-Class X offense. See
People v. Donoho, 204 Ill. 2d 159, 172 (2003) (a statute is ambiguous if subject to two or more
reasonable interpretations). If the General Assembly meant the prohibition to apply only for
the duration of his sentence for the Class X felony, Malvin qualifies for the enhanced
programming credit against his 15-year sentence for second degree murder.
¶ 19 The transcript of the legislative debates on the bill that included the provision precluding
programming credits for Class X felons has no legislator commenting on consecutive
sentences. 86th Ill. Gen. Assem., House Bill 3167, 1990 Sess.; 86th Ill. Gen. Assem., Senate
Proceedings, June 20, 1990, at 234; 86th Ill. Gen. Assem., Senate Proceedings, June 21, 1990,
at 52-55. The bill’s sponsor emphasized that the bill encouraged inmates to engage in
educational programs in hopes of reducing recidivism. 86th Ill. Gen. Assem., House
Proceedings, May 16, 1990, at 33-34. The Senate Judiciary Committee recommended the
language denying programming credit to inmates convicted of Class X offenses (86th Ill. Gen.
Assem., Senate Proceedings, June 14, 1990, at 14), but nothing in the legislative history
indicates an intent to deprive persons convicted of Class X offenses from receiving program
credit on other convictions.
¶ 20 Due to the absence of pertinent legislative history, we turn to general principles of statutory
construction. When a statute is ambiguous “the rule of lenity is appropriate.” People v. Lashley,
2016 IL App (1st) 133401, ¶ 63. The rule of lenity provides that ambiguous criminal statutes
will generally be construed in the defendant’s favor. People v. Gutman, 2011 IL 110338, ¶ 12;
see also Whitney, 188 Ill. 2d at 97-98. Therefore, we adopt the construction that favors Malvin.
Applying the rule of lenity, we find that section 3-6-3 permits awarding enhanced
programming credit against the part of a consecutive sentence that punishes an inmate for a
crime not specifically listed as requiring exclusion from enhanced programming credit. See
730 ILCS 5/3-6-3(a)(2), (2.1) (West 2016). We hold Malvin may be awarded day-for-day
credit under section 3-6-3(a)(2.1), multiplied by a factor of 1.5 for time spent participating in
qualified programs, against his sentence for second degree murder.
¶ 21 The State does not contest Malvin’s calculation that his program participation totals 925
full days. Multiplied by a factor of 1.5, the credit comes to 1387.5 days. As Malvin has been
awarded the 925 days of day-for-day credit for that time, the enhanced programming credit
available under section 3-6-3(a)(4) is 462 days. See People v. Montalvo, 2016 IL App (2d)
140905, ¶ 19. Accordingly, we hold that, due to Malvin’s participation in programming while
in custody at the CCDOC, he is entitled to an additional 462 days of credit against his 15-year
sentence for second degree murder.
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¶ 22 III. CONCLUSION
¶ 23 Section 5-8-4 of the Code, as interpreted by the IDOC and the courts, has always permitted
the IDOC to award different credits against separate parts of consecutive sentences. We find
that section 3-6-3 does not prohibit the IDOC from awarding an inmate serving consecutive
sentences enhanced programming credit against the part of the consecutive sentence that
punishes the inmate for a crime not specifically listed as cause for denying the credit. Hence,
Malvin is awarded enhanced programming credit against his second degree murder conviction.
For the reasons stated, we affirm the judgment of the trial court. However, pursuant to Illinois
Supreme Court Rule 366(a) (eff. Feb. 1, 1994), we modify the mittimus to reflect 462
additional days’ sentence credit.
¶ 24 Affirmed as modified.
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