People v. Beachem

Docket No. 104976.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
WADE BEACHEM, Appellee.
Opinion filed May 22, 2008.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Defendant, Wade Beachem, was convicted in the circuit court of
Cook County of possession of a controlled substance with intent to
deliver (720 ILCS 570/401(a)(1)(A) (West 2004)) and was sentenced
to six years’ imprisonment. Defendant appealed his conviction and
argued, inter alia, that he was entitled to credit for time served under
section 5–8–7 of the Unified Code of Corrections (730 ILCS 5/5–8–7
(West 2004)), for the time he spent in the Sheriff’s Day Reporting
Center program. The appellate court agreed with defendant and
amended the mittimus to grant defendant 171 days of credit for the
days he actually reported to the Day Reporting Center. 374 Ill. App.
3d 145. The State filed a petition for leave to appeal pursuant to
Supreme Court Rules 612 (210 Ill. 2d R. 612) and 315 (210 Ill. 2d R.
315). This court granted the State’s petition, and, for the following
reasons, we affirm the judgment of the appellate court.
BACKGROUND
Defendant was arrested on the evening of March 3, 2004, after
police officers, executing a search warrant, discovered two plastic
bags containing crack cocaine in defendant’s closet. Defendant was
charged by indictment with possession of a controlled substance with
intent to deliver (720 ILCS 570/401(a)(1)(A) (West 2004)), a Class
X offense.
Prior to trial, defendant was assigned to the Sheriff’s Day
Reporting Center program (Program) for 258 days and actually
reported to the Day Reporting Center (Center) on 171 days.1 The
record before this court does not provide specific information
concerning defendant’s involvement in the Program. For instance, it
does not specify when defendant was assigned to the Program, when
defendant’s enrollment was terminated, or the number of hours per
day that defendant spent at the Center. However, despite these
deficiencies, the parties do not dispute that defendant was assigned to
the Program for 258 days and spent between three and nine hours at
the Center on 171 days. Since neither party disputes the accuracy of
these facts, we accept them as true for the purpose of the present
appeal.
The Cook County sheriff operates the Program to comply with a
consent decree that caps the number of inmates that the Cook County
jail is allowed to house. See Duran v. Elrod, 713 F.2d 292 (7th Cir.
1983). This consent decree requires the sheriff to release prisoners in
order to keep the total jail population under this cap. To that end, the
district court entered an order directing the sheriff to release “on their
own recognizance the persons held in default of the lowest amount of
1
At the outset, we note that the program defendant was assigned to is
titled the “Day Reporting Center.” The title given to this program is easily
confused, however, with the physical location to which defendant actually
reported. Therefore, for clarity’s sake we will refer to the Day Reporting
Center program as the “Program” and to the physical facility where
defendant spent time as the “Center.”
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bail, and among persons held on the same amount of bail the ones
who have been confined for the longest time.” Duran, 713 F.2d at
294.
For information on the Program, the parties have referred this
court to the Cook County sheriff’s office Web site. The Cook County
sheriff’s office Web site describes the Program as a “one-of-a-kind
intensive supervision program that reduces overcrowding in Cook
County Jail while providing services and direction for pretrial non-
violent participants.” http://www.cookcountysheriff.org/dcsi/day.html
(last visited April 21, 2008). The typical participant in the Program
is “male, non-violent, and in pre-trial status usually on drug-related
charges.” http://www.cookcountysheriff.org/dcsi/day.html (last
visited April 21, 2008). Upon entry into the Program, each participant
must complete an eight-day orientation. At the end of the orientation
the participant is evaluated and placed onto a “program track.” The
tracks “vary in intensity from nine (9) hours to three (3) hours daily.”
http://www.cookcountysheriff.org/dcsi/day.html (last visited April 21,
2008). “The basic concept is to acclimate the participant to the daily
routine of reporting to a strictly supervised environment.”
http://www.cookcountysheriff.org/dcsi/day.html (last visited April 21,
2008). “Every participant is subject to mandatory daily attendance and
drug testing. Any offender who fails to adhere to the rules of the
Program is reincarcerated. Such infractions include: excessive tardiness
and absenteeism, new arrests, or disregard for [Program/Center] rules.”
http://www.cookcountysheriff.org/dcsi/day.html (last visited April 21,
2008).
The Program is administered through the Cook County sheriff’s
office’s Department of Community Supervision and Intervention. The
Department of Community Supervision and Intervention administers
“all programs *** for inmates outside the Department of
Corrections.” http://www.cookcountysheriff.org/dcsi/index.html (last
visited April 21, 2008). The Department of Community Supervision
and Intervention “maintains its own Fugitive Unit to locate and
reincarcerate A W O L s f r o m i t s p ro g r a m s.”
http://www.cookcountysheriff.org/dcsi/index.html (last visited April
21, 2008).
Following a bench trial, defendant was found guilty of possession
with intent to deliver and sentenced to the minimum term of six
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years’ imprisonment with a 26-day credit for time served. The 26
days of credit given by the trial court reflected the time defendant
spent in actual physical confinement. The trial court made no mention
of, nor was there any discussion of, giving defendant credit for his
time in the Program and/or at the Center.2
On appeal, defendant argued, and the appellate court agreed, that
defendant should have received additional credit for the time he spent
in the Program prior to trial. 374 Ill. App. 3d 145. The appellate court,
citing this court’s opinion in People v. Campa, 217 Ill. 2d 243 (2005),
granted defendant credit for the 171 days he reported to the Center.
In doing so, the appellate court declined to extend the logic of either
People ex rel. Morrison v. Sielaff, 58 Ill. 2d 91 (1974) (time spent
while released on bond did not count as time in custody for purpose
of credit for time served), or People v. Ramos, 138 Ill. 2d 152 (1990)
(time spent in home confinement as a condition of bond did not
constitute being in “custody”), as neither case dealt with the Program.
The appellate court also declined to follow an appellate court
decision, People v. Martin, 357 Ill. App. 3d 663 (2005) (holding that
a defendant in the Program was not in custody for purposes of section
5–8–7). The appellate court noted that while Martin dealt with the
Program, the opinion relied on Ramos and rejected the later affirmed
logic of Campa. 374 Ill. App. 3d at 151. Accordingly, the appellate
court found that under the present circumstances, defendant was “in
‘custody’ as the term is used in the sentencing credit provision of the
Unified Code of Corrections (730 ILCS 5/5–8–7(b) (West 2004)).”
374 Ill. App. 3d at 153.
However, the appellate court held that defendant was entitled only
to credit for the days he actually reported to the Center. 374 Ill. App.
3d at 153. The appellate court noted that a defendant who is held in
2
Despite the apparent forfeiture argument, the State, as appellant, has
not raised the issue of forfeiture before this court. Likewise, there is no
indication that the State raised forfeiture before the appellate court.
Therefore, because forfeiture is “ ‘in the nature of an affirmative defense
that the State may either raise, waive, or forfeit’ ” (People v. Blair, 215 Ill.
2d 427, 442 (2005), quoting People v. Stivers, 338 Ill. App. 3d 262, 264
(2003)) the forfeiture argument is itself forfeited. Accordingly this court
will address the merits of the present case.
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custody for even part of a day is entitled to credit against his sentence
for all of that day, but the court was “not prepared” to give defendant
258 days credit “for the entire period during which [defendant] was
potentially subject to the restrictions of the sheriff’s Day Reporting
Center program.” 374 Ill. App. 3d at 153, citing People v. Quintana,
332 Ill. App. 3d 96 (2002). Thus, while the appellate court gave
defendant a full day’s credit for the few hours defendant spent at the
Center on 171 days, it denied credit for weekends, holidays, and
excused court dates when defendant did not report to the Center.3
The State, as appellant, asserts that the appellate court erred in
granting defendant credit for the time spent in the Center, claiming
that defendant was not in “custody” within the meaning of section
5–8–7.
STANDARD OF REVIEW
The fundamental question presented is whether defendant’s
participation in the Program constitutes being in “custody” as that
term is contemplated by section 5–8–7. As this is a question of
statutory interpretation and does not involve disputed facts, our
review is de novo. People v. Cordell, 223 Ill. 2d 380, 389 (2006);
People v. Cosenza, 215 Ill. 2d 308, 314 (2005).
ANALYSIS
The primary objective of statutory interpretation is to ascertain
and give effect to the intent of the legislature. People v. Perry, 224 Ill.
2d 312, 323 (2007). This inquiry “must always begin with the
language of the statute, which is the surest and most reliable indicator
of legislative intent.” People v. Pullen, 192 Ill. 2d 36, 42 (2000). See
also Campa, 217 Ill. 2d at 252, citing People v. Woodard, 175 Ill. 2d
435, 443 (1997). We construe the statute as a whole and afford the
language of the statute its plain and ordinary meaning. People ex rel.
Devine v. Sharkey, 221 Ill. 2d 613, 617 (2006), citing People v. A
3
Neither party has disputed the appellate court’s determination that
defendant was not entitled to credit for the time he was in the Program but
was nonetheless not obligated to report to the Center. Accordingly, we do
not review this determination.
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Parcel of Property Commonly Known As 1945 North 31st Street,
Decatur, Macon County, Illinois, 217 Ill. 2d 481, 499 (2005). “We do
not view words and phrases in isolation but consider them in light of
other relevant provisions of the statute.” Campa, 217 Ill. 2d at 252-53
(citing People v. Maggette, 195 Ill. 2d 336, 348 (2001), and Michigan
Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504
(2000)). Accordingly, we begin our analysis by considering the
meaning of the term “custody” as used in section 5–8–7.
Section 5–8–7 provides, in relevant part, that “(b) [t]he offender
shall be given credit on the determinate sentence or maximum term
and the minimum period of imprisonment for time spent in custody
as a result of the offense for which the sentence was imposed ***.”
730 ILCS 5/5–8–7(b) (West 2004).
The State argues that the appellate court erred in concluding that
the Program falls within section 5–8–7’s meaning of the term
“custody” because only “actual confinement or incarceration” is
sufficient. Thus, the State argues that credit for time served is not
appropriate under section 5–8–7 because the Program represents a
“lesser restraint” that is not the “equivalent of custodial
confinement.”
The term “custody” is not defined by section 5–8–7 nor any other
relevant statue. As noted in Campa, the term “custody” is not defined
under either the Code of Criminal Procedure of 1963 (725 ILCS
5/100–1 et seq. (West 2004)) or the Criminal Code of 1961 (720
ILCS 5/1–1 et seq. (West 2004)). Campa, 217 Ill. 2d at 253.
Likewise, “custody” is not defined in the Unified Code of Corrections
(730 ILCS 5/5–1–1 et seq. (West 2004)). Where a term is not defined,
“we must assume that the legislature intended the term to have its
ordinary and popularly understood meaning.” Maggette, 195 Ill. 2d
at 349. Therefore, despite the General Assembly’s power to make “ ‘a
reasonable definition of the terms used in an act’ ” (Perry, 224 Ill. 2d
at 326-27, quoting 34 Ill. L. & Prac. Statutes §51, at 86 (2001)), “[i]t
is entirely appropriate to employ the dictionary as a resource to
ascertain the meaning of undefined terms.” Price v. Philip Morris,
Inc., 219 Ill. 2d 182, 243 (2005), citing People ex rel. Daley v.
Datacom Systems Corp., 146 Ill. 2d 1, 16 (1991). See also People v.
Skillom, 361 Ill. App. 3d 901, 909 (2005) (“It is appropriate to turn to
a dictionary when determining the meaning of an otherwise undefined
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word or phrase”; citing People v. Ward, 215 Ill. 2d 317, 325 (2005),
and People v. Blair, 215 Ill. 2d 427, 439-45 (2005)).
The definition of “custody” is very expansive. Black’s Law
Dictionary underscores the spectrum of state control that can
constitute “custody” by breaking the term down into five different
forms. “Constructive custody,” the least burdensome form, is defined
as “custody of a person (such as a parolee or probationer) whose
freedom is controlled by legal authority but who is not under direct
physical control.” Black’s Law Dictionary 412 (8th ed. 2004).
“Constructive custody” is distinguished from the more onerous forms
of both “penal custody” and “physical custody.” “Penal custody” is
defined as “[c]ustody intended to punish a criminal offender.” Black’s
Law Dictionary 412 (8th ed. 2004). “Penal custody” can be further
distinguished from “physical custody,” which is defined as “[c]ustody
of a person (such as an arrestee) whose freedom is directly controlled
and limited.” Black’s Law Dictionary 1183 (8th ed. 2004).
In fact, as this court has previously noted, “custody” “ ‘is “very
elastic and may mean actual imprisonment or physical detention or
mere power, legal or physical, of imprisoning or of taking manual
possession.” ’ ” Campa, 217 Ill. 2d at 254, quoting People v. Campa,
353 Ill. App. 3d 178, 182 (2004), quoting Black’s Law Dictionary
347 (5th ed. 1979). Therefore, custody may encompass varying
degrees of state control.
General usage dictionaries likewise give a broad definition for
“custody.” Webster’s Third New International Dictionary defines
“custody” as “judicial or penal safekeeping: control of a thing or
person with such actual or constructive possession as fulfills the
purpose of the law or duty requiring it: imprisonment or durance of
persons or charge of things.” Webster’s Third New International
Dictionary 559 (1993).
“A statute is ambiguous when it is capable of being understood by
reasonably well-informed persons in two or more different senses.”
In re J.W., 204 Ill. 2d 50, 85 (2003), citing People v. Jameson, 162 Ill.
2d 282, 288 (1994). Section 5–8–7 is ambiguous because the term
“custody” has several definitions and nothing in the context of the
statute provides any indication as to the appropriate definition.
Because section 5–8–7 is ambiguous, the question before this court
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is what degree of control the legislature intended when it used the
term “custody.”
This court has developed two distinct lines of cases interpreting
the meaning of the term “custody” in other contexts. The State urges
this court to follow the Morrison and Ramos cases. In Morrison and
Ramos this court determined that a defendant on bond was not in
“custody” for purposes of section 5–8–7. Defendant, on the other
hand, asserts that Campa is applicable. In Campa, this court
determined that a defendant in the Program was in “custody” for
purposes of the speedy-trial statute. Defendant argues that the Campa
decision is more analogous, as Campa actually dealt with the
Program and not with a defendant on bond. The State, while
acknowledging that Campa had to do with the Program, nonetheless
argues that Campa is inapplicable because Campa dealt with the
meaning of “custody” as that term is used in the speedy-trial statute,
but Morrison and Ramos dealt with credit for time served. For the
reasons that follow, we agree with defendant.
The State argues that this court should follow the Morrison and
Ramos decisions and find that “custody” means actual physical
confinement. In Morrison, this court concluded that the defendant
who was released by the court on bail was not eligible to receive
credit for time served under section 5–8–7. In reaching this
conclusion, this court reasoned that “custody” “does not include the
period of time during which the defendant was released on bail but is
predicated upon his confinement.” Morrison, 58 Ill. 2d at 94.
The reasoning of Morrison was extended by Ramos, where this
court concluded that a defendant who was on home electronic
monitoring as a condition of his bond was not in “custody” for the
purpose of section 5–8–7. This court reached this conclusion despite
defendant’s being confined to his home for 168 days during which he
was allowed to leave only three times. Ramos, 138 Ill. 2d at 154 (the
defendant was allowed to go to his arraignment and his attorney’s
office and to attend the birth of his child; he was denied permission
to visit the dentist). In reaching this conclusion, the court noted the
significant differences in the degree of liberty and personal intrusion
that a defendant on electronic monitoring faces as opposed to a
defendant who is confined in a jail or prison. The court reasoned:
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“Home confinement, though restrictive, differs in several
important respects from confinement in a jail or prison. An
offender who is detained at home is not subject to the
regimentation of penal institutions and, once inside the
residence, enjoys unrestricted freedom of activity, movement,
and association. Furthermore, a defendant confined to his
residence does not suffer the same surveillance and lack of
privacy associated with becoming a member of an
incarcerated population.” Ramos, 138 Ill. 2d at 159.
The court further noted that previous cases had not expressly stated
that “section 5–8–7(b) is available only in instances of institutional
confinement” but that from “the court’s comparison of ‘confinement’
with the ‘lesser restraints’ of probation, conditional discharge, and
supervision, it is clear, however, that such a limitation was again
intended.” Ramos, 138 Ill. 2d at 159.
Defendant argues that this court should follow the Campa
decision and find that “custody” encapsulates time spent at the
Center. Defendant asserts that Campa is controlling because unlike
Morrison and Ramos, Campa actually dealt with the Program. In
Campa, this court examined the term “custody” as used in the speedy-
trial statute (725 ILCS 5/103–5 (West 2004)) and concluded that time
spent in the Program constituted being in “custody.” Campa, 217 Ill.
2d 243. The court specifically reasoned:
“[T]he legislature did not intend that the term ‘custody,’ as it
is used in the speedy-trial statute, be equated to confinement.
Rather, we believe that the legislature intended the term
‘custody’ to have a broad meaning and encompass lesser
forms of restraint than confinement. The legislature intended
that the term ‘custody’ evolve with changing programs in our
correctional institutions.” Campa, 217 Ill. 2d at 254.
Thus, defendant asserts that “custody” is not synonymous with
confinement and that lesser forms of restraint are sufficient to
constitute “custody” under section 5–8–7.
Defendant goes on to argue that Campa is more applicable
because unlike a defendant on bond, a defendant in the Program
remains under the legal authority of the sheriff. For instance, a
defendant in the Program can be prosecuted for escape if he fails to
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return. See Campa, 217 Ill. 2d at 256-57. Further, defendant argues
that a defendant in the Program is “only participating by the grace of
the Sheriff’s Department. He or she has no constitutional or statutory
entitlement to such a boon.” In fact, defendant asserts that in the
unlikely event that “a large number of beds suddenly became
available at the correctional facility, the Sheriff could simply order
the defendant to return to the facility and the defendant would be
powerless to challenge such a determination.” Thus, defendant draws
a distinction between a defendant on bond and a defendant in the
Program and argues that Morrison and Ramos, therefore, are not on
point.
Notwithstanding this court’s opinion in Campa, the State attempts
to differentiate Campa from Morrison and Ramos by noting that
actual confinement is needed to receive credit for time served under
section 5–8–7. The State asserts that defendant’s focus on who retains
the power over a defendant is irrelevant because it does not address
actual confinement. Thus, the State maintains that the present case
should be controlled by Morrison and Ramos.
This case presents a significantly different situation than Morrison
or Ramos, as defendant in the instant matter was not on bond. Despite
the language of the consent decree in Duran (Duran, 713 F.2d at
294), defendant’s release from confinement was not on a
recognizance bond. As this court stated in Campa, “we hold that
defendant was not on bail or recognizance while participating in the
Day Reporting Center program.” Campa, 217 Ill. 2d at 261.
Importantly, in Campa, this court reasoned that the sheriff’s release
of inmates bypassed the statutory procedures for the establishment of
a bail amount or for release on the defendants’ own recognizance. We
reasoned that only the court had the statutory authority to release a
defendant on his own recognizance. Campa, 217 Ill. 2d at 261-65.
This court concluded the analysis by noting that “a sheriff cannot
substitute his or her authority for that of the trial court merely by
holding a defendant to conditions similar to those a court may
impose.” Campa, 217 Ill. 2d at 265.
A bond, established by a court of competent jurisdiction, provides
a defendant with judicial procedures that not only protect him from
arbitrary arrest, but also provide a means to modify or contest an
aspect of or denial of bond. A defendant who is properly entered into
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bond, recognizance or otherwise, is entitled to judicial procedure
before being arrested or having the terms of his liberty modified. For
instance, the Code of Criminal Procedure provides that following a
defendant’s failure to comply with any condition of a bail bond or
recognizance bond “the court *** may *** issue a warrant for the
arrest of the person.” 725 ILCS 5/110–3 (West 2004). Further, if a
defendant is “arrested or surrenders within 30 days of the issuance of
the warrant” he may be bailable again if “he shows by the
preponderance of the evidence that his failure to appear was not
intentional.” 725 ILCS 5/110–3 (West 2004). Additionally, the Code
of Criminal Procedure provides that a defendant may apply to have
the amount of his bail reduced, or “alter the conditions of the bail
bond or grant bail where it has been previously revoked or denied.”
725 ILCS 5/110–6(a) (West 2004). Further, if the State makes an
application to alter the conditions of a defendant’s bail, he is, with
limited exceptions, entitled to “[r]easonable notice of such
application by the State.” 725 ILCS 5/110–6(d) (West 2004). Even in
the event that the State files a verified application to have a defendant
arrested immediately, he is still entitled to a hearing within 10 days
on the State’s application. At this hearing, “the State has the burden
of going forward and proving the violation by clear and convincing
evidence.” 725 ILCS 5/110–6(f)(1), (f)(2) (West 2004). Wherein,
“evidence shall be presented in open court,” and a defendant is
entitled to “testify, to present witnesses in his behalf, and to cross-
examine witnesses if any are called by the State, and representation
by counsel and if the defendant is indigent to have counsel appointed
for him.” 725 ILCS 5/110–6(f)(2) (West 2004).
By contrast, a defendant in the Program has no statutory
entitlement to any of the foregoing procedures and protections. For
instance, there is no requirement that the sheriff obtain a warrant prior
to defendant’s rearrest. In fact, the Cook County sheriff’s office
maintains “its own Fugitive Unit to locate and reincarcerate AWOLs
f r o m i t s p r o g r a m s . ”
http://www.cookcountysheriff.org/dcsi/index.html (last visited April
21, 2008).
Further, a defendant in the Program does not have a statutory right
to challenge the terms, conditions, or rules of his participation in the
Program. There is no established judicial procedure for a defendant to
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challenge the sheriff’s selection of inmates for the Program, nor to
contest the terms or the track to which he is assigned. There is no right
to a hearing and no right to counsel. A defendant must simply adhere
to the sheriff’s unilaterally imposed conditions of participation. “Any
offender who fails to adhere to the rules of the program is
reincarcerated.” http://www.cookcountysheriff.org/dcsi/day.html (last
visited April 21, 2008).
Unlike a defendant who is actually released on bond, the sheriff
bears no burden of proof before finding that a defendant has violated
the rules of the Program and reincarcerating him. A defendant is
therefore subject to the discretion of the sheriff. Additionally, because
there is no statutory authority for the Day Reporting Center, there is
no restriction on the sheriff’s ability to create, change, or terminate
the Program. The sheriff could, at any point, disband the Program or
intensify the Program. An adversely affected defendant would have
no judicial recourse to contest the rule change, because he has no
statutory right to participate in the Program to begin with.
Nonetheless, the State focuses on the fact that defendant has “not
been imprisoned at all while in the Day Reporting Program.” The
State further argues that the Program is a “lesser penal restraint” that
does not entitle defendant to credit for time served. In the same vein,
the State asserts that defendant’s arguments that he “can be
prosecuted for escape, and that he is ‘vulnerable’ to reincarceration
for violations determined by the sheriff instead of a court” are
irrelevant because they focus on “who has legal power over
defendant, but do not address whether he is actually confined.”
The State’s focus on actual confinement is misplaced, as
“custody” involves more than mere physical possession and
geographic limitation. The dictionary definition of “custody” is broad
enough to incorporate virtually any degree of state control. However,
despite the breadth of this definition, this court has found that some
state control is outside the definition of “custody.” In Ramos, the
defendant was confined to his home for 168 days, as a condition of
his bond. Nevertheless, this court held that defendant was not in
custody. Ramos, 138 Ill. 2d 152. Yet, in People v. Simmons, 88 Ill. 2d
270 (1982), this court held that a defendant who failed to return to the
Peoria County Correctional Center from an unsupervised six-hour
shopping trip was in custody and could be prosecuted for escape. In
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reaching this conclusion the court reasoned that “[h]owever much the
limits of his confinement were temporarily enlarged, or the
restrictions on his conduct temporarily lessened, he was still legally
in the custody of the Center, and had a legal duty to submit to that
custody.” Simmons, 88 Ill. 2d at 273. Thus, in Simmons, this court
found that it was the legal duty to submit to custody and not the actual
physical confinement, or lack thereof, which defined a defendant’s
custodial status.
In the present case, the sheriff’s decision to modify the means
used to hold defendant had no impact on the sheriff’s legal authority
over defendant or on defendant’s obligation to submit to that
authority. Thus, defendant, like the defendant in Simmons, was in
custody while participating in the Program. In this case, the trial court
considered all the relevant factors under the Code of Criminal
Procedure (725 ILCS 5/110–5 (West 2004)) and set defendant’s bail.
Defendant, however, never posted bail and was never admitted to
bond. Instead, the sheriff released defendant from the confines of the
Cook County jail on the condition that he participate in the Program.
Admittedly, “the limits of [defendant’s] confinement” were enlarged,
and the “restrictions on his conduct” were less onerous than
incarceration, but, as in Simmons, he still remained under the legal
custody of the sheriff and had a legal duty to submit to that authority
at any time and for any reason. Defendant had no right to be in the
Program and had no recourse under the statutes of this state if the
sheriff decided to reincarcerate him, or even to terminate the entire
Program and reincarcerate all the participants.
Further, even if physical confinement were required to constitute
“custody,” defendant was still subject to confinement, albeit limited
confinement, while at the Center. Defendant spent between three and
nine hours a day in a state-run “strictly supervised environment.”
http://www.cookcountysheriff.org/dcsi/day.html (last visited April 21,
2008). The amount of time defendant spent there, the program track
defendant was placed on, and the services provided to him were all
at the discretion of the sheriff. Defendant was not free to come and go
as he pleased. He was not free to structure his day as he saw fit. He
was obligated to report at an established time to and participate in a
state-run program. He was not given the ability to decline attending
on any given day. In fact, defendant’s failure to report could result in
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his immediate arrest and reincarceration. Thus, unlike a defendant on
a traditional bond, a defendant in the Program is not only under the
“constructive custody” of the sheriff, he is also under the sheriff’s
physical custody for several hours a day. Thus, we hold that defendant
was in “custody” while participating in the Program for the purposes
of section 5–8–7.
Additional support for our conclusion that defendant was in
custody while enrolled in the Program comes from the fact that
defendant’s failure to report could result in his being prosecuted for
escape. See 720 ILCS 5/31–6 (West 2004); Simmons, 88 Ill. 2d 270;
People v. Marble, 91 Ill. 2d 242 (1982). In Campa, this court held
that “[s]ince escape is the unauthorized departure from custody
[citation], a defendant cannot escape unless he is first in custody.”
Campa, 217 Ill. 2d at 259. We find this logic no less persuasive in the
current context than it was in the context of the speedy-trial statute of
Campa. As we stated in Campa, “[a] defendant must necessarily be
in ‘custody’ while participating in these programs if he is to be held
accountable for ‘escape’ for failure to comply with the terms of the
programs.” Campa, 217 Ill. 2d at 259.
Finally, we acknowledge the State’s argument that the purposes
behind the enactments of section 5–8–7 and the speedy-trial statute
are different. However, this difference does not necessitate a different
result, as under the totality of present circumstances, we believe that
the Program falls within the legislature’s intended meaning of the
term “custody.” In the present case, the sheriff maintains complete
legal authority over defendant and physical custody for a period of
time every workday. In addition to the sheriff’s legal authority over
defendant, the sheriff also has complete authority over the Program.
The sheriff may, at his discretion, modify, intensify, or cancel the
Program at any time without affording defendant process or judicial
oversight. Defendant’s involvement in the Program, the hours he is
required to report, the degree of freedom afforded outside the Center,
as well as the Program’s very existence, are all under the control of
a state official who has the power to make any change he sees fit at
any time he sees fit. This situation must fall within the legislature’s
intended meaning of “custody” as contemplated by section 5–8–7.
Here, it is the sheriff, not a court, who has chosen to modify the
means used to hold defendant. The fact that the sheriff has chosen to
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make defendant’s confinement less onerous does nothing more to
deprive defendant of credit for time he has served than the sheriff’s
decision to hold defendant in solitary confinement would entitle him
to extra credit for time served.
CONCLUSION
For the reasons stated above, we conclude that time spent in the
Center constitutes “time spent in custody” for purposes of section
5–8–7 of the Unified Code of Corrections. 730 ILCS 5/5–8–7 (West
2004). The judgment of the appellate court is therefore affirmed.
Affirmed.
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