People v. Malvin Wash. ( 2019 )

2019 IL App (1st) 172372
No. 1-17-2372
June 10, 2019
FIRST DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) Of Cook County.
Plaintiff-Appellee, )
) No. 04 CR 21005
v. )
) The Honorable
MALVIN WASHINGTON, ) Ursula Walowski,
) Judge Presiding.
Defendant-Appellant. )
JUSTICE WALKER delivered the judgment of the court, with opinion.
Justice Pierce and Justice 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
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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
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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.
¶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
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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 subdivision (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,
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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).
¶ 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
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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
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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 ‘single term’ of imprisonment” does not preclude awarding credits at differing rates
against different sentences under the provisions of section 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
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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.
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¶ 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.
¶ 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
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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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