People v. Rinehart ( 2010 )

NO. 4-09-0283 Filed 12/17/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Coles County
THOMAS S. RINEHART, ) No. 06CF664
Defendant-Appellant. )
) Honorable
) Gary W. Jacobs
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE KNECHT delivered the opinion of the
court:
In December 2007, a jury convicted defendant, Thomas S.
Rinehart, of criminal sexual assault, a Class 1 felony (720 ILCS
5/12-13(a)(3) (West 2006)). In February 2008, the trial court
sentenced him to 28 years' imprisonment, with 334 days' sentence
credit. The written sentencing order did not indicate a manda-
tory supervised release (MSR) period.
Defendant appeals, arguing (1) he was denied a fair
trial where the State improperly questioned the venire, (2) the
sentencing judgment should be amended to reflect a two-year term
of MSR, and (3) he is entitled to two additional days' sentence
credit. We affirm as modified and remand with directions.
I. BACKGROUND
During defendant's December 2007 trial, A.A. (born
September 15, 1988) testified that in August 2006, she was
helping her mother's boyfriend, defendant, move some friends from
Mattoon, Illinois. According to A.A.'s testimony, defendant was
driving her mother's van. A.A. was alone in the van with defen-
dant. Defendant drove the van off of Route 316 onto a small side
road. Defendant told A.A., then 17 years old, to get into the
back of the van and to take her clothes off. A.A. testified
defendant placed his penis in her vagina. Defendant then told
A.A. not to tell anybody about what happened. The incident was
not reported to police for two to three weeks. At trial, defen-
dant presented no evidence on his behalf.
In December 2007, a jury convicted defendant of crimi-
nal sexual assault. The trial court's sentencing judgment
reflected defendant's sentence of 28 years' imprisonment and 334
days' sentence credit. However, the sentencing judgment did not
include a term of MSR. Thereafter, defendant received a natural-
life MSR term from the Department of Corrections (DOC).
In March 2008, defendant filed a motion for reduction
of sentence, which the trial court denied.
This appeal followed.
II. ANALYSIS
On appeal, defendant argues (1) the State's improper
questions to prospective jurors asked them to prejudge the
victim's credibility and predisposed them to believe her testi-
mony; (2) because defendant was convicted of a Class 1 felony, he
should only receive a two-year MSR term; (3) because only the
trial court--and not DOC--is authorized to impose sentence, DOC
did not have the authority to set his MSR term at natural life;
and (4) defendant is entitled to two additional days' sentence
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credit because he was not taken into custody until the day after
sentencing.
The State argues (1) the prosecutor's questioning
during voir dire was proper and (2) defendant's MSR term of
natural life was within the correct statutory range, but (3)
concedes defendant is entitled to two additional days' sentence
credit.
A. State's Questioning of the Venire
Defendant first argues he was denied a fair trial where
the State improperly questioned the venire. We agree the ques-
tions were improper but conclude defendant was not denied a fair
trial.
1. Forfeiture
The State argues, and defendant concedes, defendant
failed to properly preserve this issue for appellate review by
failing to object to the State's voir dire questions or raise the
issue in a posttrial motion. See People v. Coleman, 227 Ill. 2d
426, 433, 882 N.E.2d 1025, 1028-29 (2008). Defendant argues this
issue should be considered under a plain-error analysis. How-
ever, before determining whether plain error occurred, we must
first determine whether any error occurred at all. People v.
Owens, 372 Ill. App. 3d 616, 620, 874 N.E.2d 116, 118 (2007).
2. Standard of Review
Trial courts have broad discretion in conducting and
managing voir dire. People v. Klimawicze, 352 Ill. App. 3d 13,
25, 815 N.E.2d 760, 773 (2004). Accordingly, the standard of
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review applied to the manner in which the trial court conducts
voir dire is abuse of discretion. People v. Boston, 383 Ill.
App. 3d 352, 355, 893 N.E.2d 677, 680 (2008). An abuse of
discretion occurs where the conduct of the trial court thwarted
the selection of an impartial jury. People v. Gardner, 348 Ill.
App. 3d 479, 488, 810 N.E.2d 180, 188 (2004).
3. Voir Dire
"A defendant's right to a jury trial mandates a fair
trial by a panel of impartial jurors." People v. Gay, 377 Ill.
App. 3d 828, 834, 882 N.E.2d 1033, 1038 (2007). "The purpose of
voir dire is to assure the selection of an impartial panel of
jurors free from either bias or prejudice." People v. Williams,
164 Ill. 2d 1, 16, 645 N.E.2d 844, 850 (1994). "[V]oir dire
questions should confirm a prospective juror's ability to set
aside feelings of bias and decide the case on the evidence
presented." Gay, 377 Ill. App. 3d at 835, 882 N.E.2d at 1038.
They must "not directly or indirectly concern matters of law or
instructions." Official Reports Advance Sheet No. 8 (April 11,
2007), R. 431(a), eff. May 1, 2007. "[V]oir dire 'is not to be
used as a means of indoctrinating a jury, or impaneling a jury
with a particular predisposition.'" Boston, 383 Ill. App. 3d at
354, 893 N.E.2d at 680, quoting People v. Bowel, 111 Ill. 2d 58,
64, 488 N.E.2d 995, 998 (1986).
In this case, the State questioned the venire as
follows:
"[MS. KIGER (Assistant State's Attor-
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ney):] Can you think of some reasons why a
sexual[-]assault victim might not immediately
report an incident?
[PROSPECTIVE JUROR:] Why they would not
report an incident?
[MS. KIGER:] Right away.
[PROSPECTIVE JUROR:] The victim?
[MS. KIGER:] Correct.
[PROSPECTIVE JUROR:] Well, they probably
may say it really didn't happen, and then the
falling out with the parents. Maybe there
was a relationship, you know, age difference
relationship. Then the parents found out
about it, convinced, you know. Children are
children.
[MS. KIGER:] Can you think of a reason
why a victim who had had some things happen
to them might not immediately go to an adult
or report it?
[PROSPECTIVE JUROR:] Scared."
The State continued questioning other potential jurors
as follows:
"[MS. KIGER:] Can you think of some
reasons why a victim of sexual assault might
not immediately report it to someone?
[PROSPECTIVE JUROR:] Fear, shame.
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* * *
[MS. KIGER:] Can you think of a reason
why a victim might delay in reporting being
raped or being a victim of sexual assault?
[PROSPECTIVE JUROR:] Shame, embarrass-
ment, fear.
* * *
[MS. KIGER:] Can you think of some rea-
sons why a sexual[-]assault victim might not
automatically come forward?
[PROSPECTIVE JUROR:] Oh, I think maybe
fear, and [thoughts] you would be a lesser
person if something like that happened to
you.
* * *
[MS. KIGER:] Can you think of some rea-
sons why a sexual[-]assault victim might not
immediately report that?
[PROSPECTIVE JUROR:] Yeah.
[MS. KIGER:] Can you tell me what some
of those reasons would be?
[PROSPECTIVE JUROR:] Same, fear and
scared to come forward."
Defendant argues these questions were not for determin-
ing potential juror bias but rather for preeducating jurors as to
aspects about the victim's forthcoming testimony and as a means
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to engender sympathy for the victim. The State maintains these
questions simply inquired about prospective jurors' biases. We
find these questions improperly asked jurors to put themselves in
the victim's shoes.
In this case, the victim did not immediately report the
assault. The State asked prospective jurors whether they could
think of any reasons why a sexual-assault victim would not
immediately report the assault. The topic was designed to expose
whether a juror would automatically perceive a delay in reporting
to mean the victim was lying about the incident. A negative
response to the State's question could have indicated potential
bias against the veracity of the victim's testimony. While
questions designed to discover bias are proper, these questions
to prospective jurors asked jurors to speculate as to reasons why
a victim might not come forward. While the subject could be
raised in voir dire through artful questions, the questions asked
by the prosecutor crossed the boundary of acceptable voir dire.
Since there was no objection, we will consider whether the plain-
error doctrine applies.
4. Plain Error
The plain-error doctrine, a limited and narrow excep-
tion to the general forfeiture rule, permits appellate review of
otherwise procedurally forfeited matters. See 134 Ill. 2d R.
615(a). Under the doctrine, this court may review an unpreserved
or forfeited error when there is a clear and obvious error that
occurs in one of two situations: (1) "the evidence is closely
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balanced" or (2) the "error is so serious *** it affected the
fairness of the defendant's trial and challenged the integrity of
the judicial process." People v. Bannister, 232 Ill. 2d 52, 65,
902 N.E.2d 571, 580 (2008). The defendant carries the burden of
establishing plain error; if he or she is unable to do so, "the
'procedural default must be honored.'" Bannister, 232 Ill. 2d at
65, 902 N.E.2d at 580-81, quoting People v. Keene, 169 Ill. 2d 1,
17, 660 N.E.2d 901, 910 (1995).
Defendant cannot prove plain error under either situa-
tion. First, the evidence in this case is not closely balanced.
Defendant must prove "the evidence was so closely balanced that
the error alone severely threatened to tip the scales of justice
against him." People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d
467, 479 (2005). At trial, the victim testified defendant drove
her to a small side road and sexually assaulted her. She de-
scribed the offense and the location. Defendant presented no
evidence. The evidence was not so closely balanced that the
error by itself "severely threatened to tip the scales of justice
against" defendant.
Second, defendant cannot prove the "error is so serious
*** it affected the fairness of the defendant's trial and chal-
lenged the integrity of the judicial process." Bannister, 232
Ill. 2d at 65, 902 N.E.2d at 580. Defendant, citing People v.
Bean, 137 Ill. 2d 65, 81, 560 N.E.2d 258, 265 (1990), simply
contends the error affects a substantial right and should be
reviewed.
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Defendant's argument falls far short of establishing
plain error. Defendant's lone case on this issue is distinguish-
able. Bean involves a defendant's claim his absence during in
camera voir dire amounted to plain error. Bean, 137 Ill. 2d at
78-81, 560 N.E.2d at 264-65. The court reasoned, although the
right to an impartial jury is a substantial right for purposes of
plain-error review, "defendant's absence from the in camera voir
dire did not, in fact, have the slightest effect on the impar-
tiality of the jury selected." Bean, 137 Ill. 2d at 81, 560
N.E.2d at 265.
In this case, while the voir dire questions crossed the
line of propriety, they did not indoctrinate the jury and deny
defendant a fair trial. The State's questions, though improper,
were not pervasive. In addition, the jurors, during the same
questioning, recognized defendant's innocence until proved guilty
and asserted they would be impartial. During trial, the jurors
heard the victim testify she was afraid to tell her mother, who
was defendant's live-in paramour, because she feared her mother
would not believe her and would punish her. The jurors did not
have to rely on speculation for determining the reason for A.A.'s
delay in reporting the offense.
Defendant cannot prove plain error, and his procedural
default stands. See Bannister, 232 Ill. 2d at 65, 902 N.E.2d at
580-81.
5. Ineffective Assistance of Counsel
Defendant further argues this court should not consider
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the voir dire issue forfeited because trial counsel was ineffec-
tive for not raising the error before the trial court and pre-
serving the matter for appeal. This argument fails.
To establish his ineffective-assistance-of-counsel
claim, defendant must show (1) his counsel's performance was
inadequate "in that it fell below an objective standard of
reasonableness," and (2) a reasonable probability exists the
outcome of the proceeding would have been different absent
counsel's deficient performance. People v. Moore, 189 Ill. 2d
521, 535, 727 N.E.2d 348, 355-56 (2000), citing Strickland v.
Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698,
104 S. Ct. 2052, 2064, 2068 (1984). Because defendant must prove
both prongs of Strickland to prevail on this claim, we may
resolve the issue "solely on the ground that the defendant did
not suffer prejudice without deciding whether counsel's perfor-
mance was constitutionally deficient." People v. Little, 335
Ill. App. 3d 1046, 1052, 782 N.E.2d 957, 963 (2003).
We find defendant cannot show a reasonable probability
exists the proceeding's outcome would have been different had
counsel objected to the State's voir dire questions. As we
reasoned above, the voir dire questions did not deprive defendant
of a fair trial. The jurors were provided testimony showing the
reason A.A. hesitated in reporting the rape. The jurors stated
they could be impartial. Moreover, during closing argument,
defense counsel emphasized the reporting delay as a basis for
finding defendant not guilty, and the evidence at trial supports
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the conviction.
B. Defendant's MSR Term
Defendant next argues (1) the trial court erred in
finding he was required to serve a minimum three-year MSR term,
and (2) because the trial court, and not DOC, is authorized to
impose sentence, the lifetime MSR term imposed by DOC is void.
1. Standard of Review
The imposition of MSR is statutorily required. See 730
ILCS 5/5-8-1(d)(4) (West 2006). The proper construction of a
statute is a question of law which we review de novo. See People
v. Cardamone, 232 Ill. 2d 504, 511, 905 N.E.2d 806, 810 (2009).
"It is well settled that the primary objective of this court when
construing the meaning of a statute is to ascertain and give
effect to the intent of the General Assembly." Southern Illi-
noisan v. Illinois Department of Public Health, 218 Ill. 2d 390,
415, 844 N.E.2d 1, 14 (2006). The General Assembly's intent is
best gleaned from the statute itself, and "where the statutory
language is clear and unambiguous, it must be given effect."
Orlak v. Loyola University Health System, 228 Ill. 2d 1, 8, 885
N.E.2d 999, 1004 (2007).
2. Defendant Is Statutorily Eligible
for a Minimum Three Years' MSR
Defendant initially argues the trial court erred in
finding he was required to serve a minimum three-year MSR term.
Specifically, defendant contends, because he was convicted of a
Class 1 felony, he should only serve a two-year MSR term. We
disagree.
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Section 5-8-1(d)(2) of the Unified Code of Corrections
(Unified Code) provides for a two-year term of MSR for a Class 1
or a Class 2 felony except where the offense is criminal sexual
assault. 730 ILCS 5-8-1(d)(2) (West 2006). Where, as here, the
offense is criminal sexual assault, section 5-8-1(d)(4) of the
Unified Code provides the following:
"for defendants who commit the offense
of predatory criminal sexual assault of a
child, aggravated criminal sexual assault, or
criminal sexual assault *** the term of [MSR]
shall range from a minimum of 3 years to a
maximum of the natural life of the defen-
dant[.]" (Emphases added.) 730 ILCS 5/5-8-
1(d)(4) (West 2006).
Defendant was convicted of criminal sexual assault, a
Class 1 felony. Ordinarily, a Class 1 felony would result in two
years' MSR. However, the Unified Code provides an exception for
criminal sexual assault. As a result, defendant was eligible for
a minimum of three years' MSR. Defendant's argument that he
should receive two years' MSR fails.
3. Authority To Set Defendant's MSR Under
Section 5-8-1(d) of the Unified Code
During sentencing, the trial court did not specifically
pronounce defendant's MSR term. Instead, the court stated the
following:
"I further order that the defendant will
serve a period of [MSR] after serving his
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sentence as mandated by statute.
Counsel, [it is] a little bit unclear to
me what that period would be. There's been
some recent legislation that would suggest to
me that the applicable time upon the defen-
dant for this offense is not less than three
and could be up to natural life, as the stat-
ute indicated, regarding the [MSR] period. I
don't think I have to make that as part of my
finding. It's what [DOC] will impose upon
him, but there is a minimum three-year [MSR]
period. As I understand the statute, it
could be beyond that period."
The written sentencing judgment did not mention MSR. Thereafter,
defendant received an MSR term of natural life from DOC.
Defendant argues because the trial court, and not DOC,
is authorized to impose his sentence, the lifetime term of MSR is
void. We understand defendant's argument to be that upon convic-
tion for criminal sexual assault, the court must sentence the
defendant to a specific MSR term within the range of three years
to natural life.
The State argues when the trial court fails to include
MSR in the sentencing judgment, DOC may impose it. Implicit in
the State's argument is DOC also possesses the discretion to
determine where within the statutory range defendant's MSR term
should fall.
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Section 5-8-1(d) of the Unified Code states, "every
sentence shall include as though written therein a term [of MSR]
in addition to the term of imprisonment." 730 ILCS 5/5-8-1(d)
(West 2006). As previously stated, the MSR term for the offense
of criminal sexual assault ranges from a minimum term of three
years to a maximum term of the length of defendant's natural
life. See 730 ILCS 5/5-8-1(d)(4) (West 2006).
Section 3-3-8(b) of the Unified Code provides the
Prisoner Review Board (Review Board) the power to terminate MSR
early. See 730 ILCS 5/3-3-8(b) (West 2006) ("[t]he *** Review
Board may enter an order releasing and discharging one from
parole or [MSR], and his commitment to the [DOC], when it deter-
mines that he is likely to remain at liberty without committing
another offense"). Although the Unified Code authorizes DOC--
through the Review Board--to make final determinations involving
the actual amount of time a defendant spends under MSR, section
5-8-1(d)(4) specifically designates an MSR sentencing range for
the offense of criminal sexual assault. See 730 ILCS 5/5-8-
1(d)(4) (West 2006). It is implicit in authorizing a sentencing
range that the trial court has the authority to sentence a
defendant within that range.
In this case, the legislature carved out a limited
exception for the crimes listed in section 5-8-1(d)(2). Every
other period of MSR in section 5-8-1(d) is set as a specific
number of years by the legislature. As a result, a trial court
could fail to include MSR as part of sentencing and have the
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error remedied by operation of law. See 730 ILCS 5/5-8-1(d)
(West 2006) ("every sentence shall include as though written
therein a term [of MSR] in addition to the term of imprison-
ment").
However, if the legislature intended for the maximum
term of natural life to be automatically included in the sentence
for defendants convicted of crimes included in section 5-8-1(d),
it would have so stated instead of giving a range. Moreover, to
find that defendant's MSR term would be automatically set at an
indeterminate range of "three years to natural life" would be
inconsistent with the determinate sentence structure of section
5-8-1(a). See 730 ILCS 5/5-8-1(a) (West 2006) ("[e]xcept as
otherwise provided in the statute defining the offense, a sen-
tence of imprisonment for a felony shall be a determinate sen-
tence set by the court under this [s]ection").
In addition, the grant of authority to impose the MSR
term is structurally located in the section of the Unified Code
authorizing the sentencing power of the trial court and not
within the section concerning the powers and duties of the Review
Board. In fact, nowhere in section 3-3-2 does the legislature
grant the Review Board the discretion to determine the range of a
defendant's MSR term under section 5-8-1(d)(4). See 730 ILCS
5/3-3-2 (West 2006). Further, while the legislature has autho-
rized the Review Board to promulgate its own rules regarding the
conduct of its work (730 ILCS 5/3-3-2(d) (West 2006)), the Review
Board has not adopted any rule concerning its discretion to
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impose MSR pursuant to section 5-8-1(d)(4). See 20 Ill. Adm.
Code §§1610.10 through 1610.180, as amended by 13 Ill. Reg. 3063,
eff. February 28, 1989.
We find the legislature intended the trial court have
the authority to impose MSR terms for the offenses listed in
section 5-8-1(d)(4). Because section 5-8-1(d)(4) contains an MSR
term range for criminal sexual assault, the court also possesses
the duty to exercise its discretion and impose MSR within that
range. The trial court, and not DOC, is in the best position to
assess and weigh the factors relevant to determine whether a
defendant should serve three years' MSR, natural life, or a term
in between. See People v. Stacey, 193 Ill. 2d 203, 209, 737
N.E.2d 626, 629 (2000).
In this case, the trial court was afforded the discre-
tion to determine defendant's MSR term within the range provided
for by section 5-8-1(d)(4). The court should have exercised that
discretion. If the legislature wanted to give DOC or the Review
Board the discretion to determine defendant's MSR term where the
court fails to impose MSR, it would have so stated. It did not.
As a result, defendant's natural-life MSR term, as imposed by
DOC, is void.
We note that once the trial court has set defendant's
MSR term, the Review Board retains the power to set the condi-
tions of MSR, and to ultimately reduce or terminate defendant's
MSR period where it determines defendant "is likely to remain at
liberty without committing another offense." 730 ILCS 5/3-3-8(b)
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(West 2006).
We recognize the Second District reached a contrary
decision in People v. Schneider, 403 Ill. App. 3d 301, 308-09,
933 N.E.2d 384, 391 (2010). The Schneider court, also interpret-
ing section 5-8-1(d)(4), found the legislature intended trial
courts impose an indeterminate MSR sentence and DOC to, there-
fore, decide when a prisoner may be released from MSR. Schnei-
der, 403 Ill. App. 3d at 308-09, 933 N.E.2d at 391. We respect-
fully disagree with the holding in Schneider and decline to
follow it.
C. Defendant's Sentence Credit
Defendant last argues he is entitled to two days'
additional sentence credit. The State concedes the sentencing
error. While defendant argues two days' credit against his
sentence are at issue, for reasons that follow we will direct the
trial court on remand to add only one day to the sentencing
judgment.
Two sentencing errors are alleged in this case. First,
defendant argues the date of sentencing should be included
because he was not transferred to the custody of DOC until one
day after sentencing. Second, defendant argues, not counting the
date of sentencing, the trial court gave him credit for 334 days
when he was incarcerated for 335 days.
We begin with the issue of whether we will remand to
the trial court to apply credit for the day defendant spent in
county jail awaiting transfer to DOC custody. As defendant
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acknowledges, the case law establishes trial courts should not
issue credit for the date of sentencing if the defendant is
remanded to DOC custody the same day. People v. Elder, 392 Ill.
App. 3d 133, 138, 910 N.E.2d 202, 206 (2009). Defendant distin-
guishes Elder's holding by emphasizing he was not remanded to DOC
custody the same day of sentencing. After pronouncing defen-
dant's sentence, the trial court specifically "remanded [defen-
dant] to the Coles County Safety and Detention Center." Defen-
dant was not taken into DOC custody on February 28, 2008.
Instead, he was transported one day later, on February 29, 2008.
If we accept defendant's argument, we give every
criminal defendant who is not transferred to DOC on the date of
sentencing a sentence-credit issue for appeal. This action is
inconsistent with the goal of judicial economy. Trial courts
cannot predict or control when DOC will take custody of a crimi-
nal defendant after sentencing. They should determine sentencing
as if DOC will take custody the day of sentencing. DOC then
should add any additional days the defendant remained in custody
at the county jail awaiting transfer to DOC's custody in deter-
mining the time-served credit to which the defendant is entitled.
In this case, we find no error in the trial court's
failure to predict defendant's February 29, 2008, transfer to DOC
in calculating the presentence credit. We leave the matter to
DOC to include that day in defendant's time-served calculation.
Moreover, we note it seems DOC may already be providing the post-
sentencing, pre-DOC-custody credit to its inmates' sentences. In
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People v. Mitchell, 403 Ill. App. 3d 707, 708-09, 936 N.E.2d 659,
661 (2010), we refused to remand with directions to add five days
of credit for time served between sentencing and the defendant's
transfer to DOC custody, because the DOC website indicated the
defendant had been given credit for those days. Similarly, in
this case, the same Web site indicates DOC gave defendant more
days' credit than the 334 ordered by the trial court and may have
already calculated the day defendant seeks.
Turning to the second issue, both sides agree the
remaining days were improperly calculated. The record shows
defendant was in custody 36 days from December 29, 2006, through
February 2, 2007, and 299 days from May 5, 2007, until his
February 28, 2008, sentencing date. Not counting the sentencing
date, defendant should have received credit for 335 days. The
trial court only awarded credit for 334. Defendant is entitled
to one additional day of sentence credit on remand.
III. CONCLUSION
For the reasons stated, we (1) affirm defendant's
conviction; (2) vacate defendant's MSR term; and (3) affirm
defendant's sentence as modified but remand with directions to
(a) set defendant's term of MSR and (b) amend the sentencing
judgment to add one additional day of sentence credit.
Affirmed as modified and remanded with directions.
STEIGMANN and POPE, JJ., concur.
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