People v. Smith

2014 IL App (3d) 130548Opinion filed June 23, 2014
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) Grundy County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-13-0548
v. ) Circuit No. 09-CF-189
)
JASON E. SMITH, )
) Honorable Lance R. Peterson,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices McDade and O'Brien concurred in the judgment and opinion.
OPINION
¶1 The State charged and convicted the defendant, Jason Smith, with two counts of
felonious aggravated driving under the influence (625 ILCS 5/11-501(a)(4), 11-501(a)(5), 11-
501(d)(1)(C), 11-501(d)(2)(F) (West 2008)) and one count of misdemeanor driving under the
influence (625 ILCS 5/11-501(a)(6) (West 2008)). The trial court found the counts merged into
the most serious offense and sentenced defendant to three years' incarceration. The court
released defendant on bond pending the resolution of his direct appeal. This court affirmed
defendant's conviction and sentence. People v. Smith, 2013 IL App (3d) 120149-U. Thereafter,
defendant moved for sentencing credit for the time he spent released pending the conclusion of
his appeal. Defendant claimed that the conditions of his release entitled him to day-for-day
credit against his three-year sentence of incarceration. The trial court denied defendant's motion
and remanded him to the custody of the Illinois Department of Corrections. Defendant appeals
that ruling, claiming the trial court erred when finding his time spent released on bond pending
appeal did not entitle him to credit against his sentence of incarceration.
¶2 BACKGROUND
¶3 The facts of this matter are not in dispute. Witnesses testified that they observed
defendant traveling at approximately 90 miles per hour on Interstate 80 at 5:30 a.m. in December
of 2009. After swerving from the shoulder toward the left-hand lane, defendant's vehicle
collided with another, forcing the other vehicle into a ditch. An emergency room physician
treated defendant following the accident, collecting blood in the process. The blood, collected at
6:43 a.m., indicated a blood alcohol content of .067. Urine collected at 7:40 a.m. following the
accident tested positive for cannabis, amphetamines, and phenylpropanol.
¶4 A jury convicted the defendant in January of 2011 of driving under the influence (625
ILCS 5/11-501(a)(4), (a)(5) (West 2008)) and sentencing took place in October of 2011. On
October 20, 2011, the trial court sentenced defendant to three years' incarceration. The State
took defendant into custody on October 27, 2011. Defendant filed a timely motion to reconsider
sentence, as well as a motion for release pending the conclusion of his appeal. The trial court
denied defendant's motion to reconsider sentence, but ultimately granted defendant's motion for
release.
¶5 The order granting defendant's motion for release states as follows:
"Standard conditions of bond apply except that the Defendant
is allowed to travel to Wisconsin and Indiana for Work/Apprenticeship
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Program only.
Special Conditions of Appellate Bond:
(1) Defendant is on home confinement and may leave only
for Work/Apprenticeship Program.
(2) Defendant must maintain a SCRAM/GPS monitoring
bracelet at all times, to be monitored by the Grundy County Probation
Department.
(3) Defendant is to consume no alcohol.
(4) Defendant is not permitted to drive a motor vehicle.
(5) Defendant is to remain enrolled in the Apprenticeship
Program. If he is no longer enrolled in the Apprenticeship Program he
is to notify the State's Attorney's Office or Probation Department within
48 hours of the disenrollment.
(6) Defendant will reside at 1315 Susan Circle, Morris, IL 60450.
Bond is set in the amount of $30,000.00, 10% to apply."
¶6 Upon learning that the probation department did not have the ability to monitor defendant
as directed, the trial court modified its order, noting defendant "is to be at his residence from 7
pm Mon to 4am Tues, 7 pm Tues to 4 am Wed, 7 pm Wed to 4 am Thurs, 7 pm Thur to 4 am Fri
and 7 pm Fri to 4 am Mon. SCRAM to be monitored by the Traffic School for behavior
change."
¶7 On May 14, 2013, this court affirmed defendant's conviction and sentence. Smith, 2013
IL App (3d) 120149-U. Thereafter, defendant filed a motion to amend the mittimus to reflect
credit for "time served pursuant to 730 ILCS 5/4-4.5-100." In his motion, defendant argued he
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was entitled to credit against his sentence for each day that he was released on the appeal bond.
The trial court denied defendant's motion on June 21, 2013. Defendant filed a motion to
reconsider, which the trial court denied via minute order on July 9, 2013, and written order on
July 11, 2013. Defendant filed his notice of appeal on July 24, 2013. This appeal followed.
¶8 ANALYSIS
¶9 Defendant argues that the trial court erred in "refusing to give defendant credit for his
time spent in home confinement on appellate bond." Defendant's argument is based on his
interpretation of section 5-4.5-100 of the Unified Code of Corrections (the Code) (730 ILCS 5/5-
4.5-100 (West 2012)), as well as his analysis of two supreme court cases: People v. Beachem,
229 Ill. 2d 237 (2008), and People v. Ramos, 138 Ill. 2d 152 (1990). As the resolution of this
appeal requires us to interpret the language of the sentencing credit statute, our review is de
novo. People v. Beachem, 229 Ill. 2d at 243.
¶ 10 Section 5-4.5-100 of the Code became effective on July 1, 2009. See Pub. Act 95-1052
(eff. July 1, 2009) (repealing 730 ILCS 5/5-8-7 and adding 730 ILCS 5/5-4.5-100). As such, it
has been effective from five months prior to defendant committing this crime until today. The
statute has been amended twice since its inception. See Pub. Act 96-1000 (eff. July 2, 2010);
Pub. Act 97-697 (eff. June 22, 2012).
¶ 11 In December of 2009, when defendant committed this crime, section 5-4.5-100 stated as
follows:
"(a) COMMENCEMENT. A sentence of imprisonment shall
commence on the date on which the offender is received by the
Department or the institution at which the sentence is to be served.
(b) CREDIT; TIME IN CUSTODY; SAME CHARGE. The
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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, at the rate
specified in Section 3-6-3 (730 ILCS 5/3-6-3). Except when prohibited
by subsection (d), the trial court may give credit to the defendant for time
spent in home detention, or when the defendant has been confined for
psychiatric or substance abuse treatment prior to judgment, if the court
finds that the detention or confinement was custodial." 730 ILCS
5/5-4.5-100 (West 2008).
¶ 12 The 2010 amendments to the statute did not significantly change the wording relevant to
this appeal. See Pub. Act 96-1000 (eff. July 2, 2010).
¶ 13 The most recent amendments, however, which became effective June 22, 2012, changed
the statute as follows:
"(b) CREDIT; TIME IN CUSTODY; SAME CHARGE.
Except as set forth in subsection (e), the offender shall be given
credit on the determinate sentence or maximum term and the
minimum period of imprisonment for the number of days time
spent in custody as a result of the offense for which the sentence
was imposed. *** [T]he trial court shall may give credit to the
defendant for time spent in home detention on the same sentencing
terms as incarceration as provided in Section 5-8A-3 (730 ILCS
5/5-8A-3)." Pub. Act 97-0697 (eff. June 22, 2012).
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¶ 14 Defendant argues that the legislature's latest amendment evinces its long held belief that
defendants released under the condition of home confinement are entitled to the same credit for
time served as those sitting in a county jail who could not secure their release. As noted above,
to further support his contention that his release pending appeal equates to custody under the
Code, defendant cites to Ramos and Beachem. We find both cases support affirmation of the
trial court's order.
¶ 15 A. Ramos
¶ 16 In Ramos, the State charged defendant with residential burglary. Ramos, 138 Ill. 2d at
153. Following his arrest, defendant posted bond and was released. A condition of the bond
included home detention. Id. Defendant pled guilty to the offense, and the trial court sentenced
him to four years' imprisonment. Id. Defendant moved, pursuant to section 5-8-7(b) of the Code
(Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-8-7(b)), for a finding that he was entitled to credit against his
sentence for time spent in pretrial release, which carried with it the condition of home
confinement. Ramos, 138 Ill. 2d at 153.
¶ 17 The trial court denied defendant's motion, finding he was not entitled to credit for time
released on bond prior to his sentencing. Id. This court reversed the trial court's decision, noting
that defendant "was permitted to leave his confinement only with the consent of the court or his
probation officer. *** Moreover, [defendant] was not permitted to work or to attend school.
Though it may not have amounted to imprisonment, Ramos' home detention was not far from it."
People v. Ramos, 181 Ill. App. 3d 1062, 1065 (1989). Therefore, this court concluded "that
during his home detention the defendant was in custody for purposes of sentence credit, and the
circuit court erred in holding otherwise." Id. Our supreme court disagreed.
"The State contends that the phrase 'time spent in custody,'
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as used in section 5-8-7(b), does not include the period of time
during which a defendant is released on bond, regardless of the
restrictions that might be imposed as conditions of release. Relying
on this court's decision in People ex rel. Morrison v. Sielaff (1974),
58 Ill. 2d 91, the State argues that the legislature intended in section
5-8-7(b) to distinguish institutional custody from release on bond and
to allow sentencing credit for only the former. The State maintains
that defendant was released from institutional custody when he was
admitted to bond and that home detention was merely a condition of
release and did not constitute custody within the meaning of the
statute. We agree." Ramos, 138 Ill. 2d 156-57.
¶ 18 The Ramos court then recapped its holding in Morrison, noting that the Morrison court
ruled "that the period of pretrial release was not 'time spent in custody' within the contemplation
of section 5-8-7(b)." Id. at 157. The Morrison court, as recalled by the Ramos court, made that
finding despite acknowledging that "the term 'custody' has been used in various contexts to
denote both confinement in a penal institution [citation] and time spent outside an institution
[citation]. The court believed, however, that for purposes of section 5-8-7(b) the inmate's pretrial
release on bond was not 'custody' within the meaning of the statute." Id.
¶ 19 The Ramos court stated:
"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
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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." Id. at 159.
¶ 20 Thereafter, the court found that the "legislature intended in section 5-8-7(b) of the
Unified Code of Corrections to distinguish between defendants who are in custody and those
who are released on bond, subject to the conditions of the bond. We therefore cannot conclude
that the term 'custody,' as it is used in section 5-8-7(b), was intended to encompass the period of
time during which a defendant is released on bond, regardless of the restrictions that might be
imposed on him during that time." Id. at 160.
¶ 21 At all times relevant during Ramos, the Unified Code read as follows:
"Calculation of Term of Imprisonment. (a) A sentence of
imprisonment shall commence on the date on which the offender
is received by the Department or the institution at which the
sentence is to be served.
(b) The 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, at the rate specified in Section 3-6-3 of this
Code." Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-8-7(b).
¶ 22 B. Beachem
¶ 23 In Beachem, the State charged defendant with possession of a controlled substance with
intent to deliver. Beachem, 229 Ill. 2d at 238. Our supreme court noted that, prior to the
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defendant's trial and conviction, he "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."
Id. at 239. Upon entry into the program, each participant must complete an eight-day
orientation. Thereafter, each participant is placed on a track, which varies from nine hours per
day to three hours per day. The concept is to acclimate the participant to the daily routine of
reporting to a strictly supervised environment. Id. at 240.
¶ 24 At sentencing, the trial court credited defendant with 26 days toward his sentence of
incarceration for the time he spent in "actual physical confinement." Id. at 241.
¶ 25 Ultimately, however, our supreme court found the defendant was in custody within the
meaning of section 5-8-7 on the days he reported to the Center. Id. at 255. At all times relevant
to the Beachem decision, section 5-8-7 stated: "(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); Beachem, 229 Ill. 2d at 244.
¶ 26 The Beachem court found the statutory langue in section 5-8-7 ambiguous "because the
term 'custody' has several definitions and nothing in the context of the statute provides any
indication as to the appropriate definition." Id. at 246. The Beachem court then discussed
Morrison and Ramos, commenting at length on the difference between being entered into the
Day Reporting Program and being released on bond. Id. at 249-50. The Beachem court detailed
in depth the rights of a defendant who is released on bond, including the right of being "entitled
to judicial procedure before being arrested or having the terms of his liberty modified." Id.¶ 27 Acknowledging that the Ramos defendant was only allowed to leave his residence 3
times in 168 days, the Beachem court found its ruling consistent with Ramos and emphasized the
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significant differences between the Ramos defendant's release on bond with the condition of
home confinement and that of Beachem, who entered the Day Reporting Program. Id. "By
contrast [to being released on bond], 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. *** 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 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." Id. at 250-51.
¶ 28 The Beachem court saw such a significant distinction between being released on bond
and being a participant in the Day Reporting Program, it actually used the phrase, "Unlike a
defendant who is actually released on bond ***." Id. at 251.
¶ 29 Beachem continued, noting the defendant therein "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.' [Citation.] 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 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
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hours a day. Thus, we hold that defendant was in 'custody' while participating in the Program for
the purposes of section 5-8-7." Id. at 253-54.
¶ 30 C. Defendant's Argument
¶ 31 Initially, we must note that the parties quarrel over which version of the crediting statute,
section 5-4.5-100(b) (730 ILCS 5/5-4.5-100(b) (West 2008)) or section 5-4.5-100 (730 ILCS
5/5-4.5-100 (West 2012)), applies to defendant's claims. The parties agree that the language
contained in the most recent version of the statute is the most favorable to defendant's argument
that his release on appeal equates to custody under the crediting statute. We need not decide this
quarrel regarding which statute applies to defendant's case as we hold, for the reasons stated
below, that defendant's home confinement while released on appeal bond does not equate to
custody as defined by the either version of the statute.
¶ 32 Defendant notes that our supreme court decided Beachem in 2008. Without citation to
any legislative history, defendant claims the legislature's most recent amendment to the crediting
statute "was a codification of the Illinois Supreme Court's ruling in Beachem." Defendant
continues, claiming that "credit for time on home detention has gone full circle from the blanket
prohibition outlined in the 1990 decision in Ramos, to a discretionary standard adopted in 2010,
and now mandatory credit as of June 22, 2012."
¶ 33 We disagree with defendant's assertion that Beachem or the current version of the statute
mandates awarding him credit toward his sentence for the days he was released on appeal bond.
¶ 34 As the State aptly notes, be it section 5-4.5-100 (730 ILCS 5/5-4.5-100 (West 2012)) or
section 5-8-7 (730 ILCS 5/5-8-7 (West 2006)), the crediting statute has stated that the offender
shall be given credit "for time spent in custody as a result of the offense for which the sentence
was imposed." (Emphasis added.) 730 ILCS 5/5-8-7 (West 2006); see also 730 ILCS 5/5-4.5-
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100 (West 2012). The State claims that defendant's home confinement does not equate to
custody as a result of the offense for which the sentence was imposed. Instead, the State
characterizes the home confinement as a self-requested condition necessary to secure his release
from the custody which resulted from the offense defendant committed.
¶ 35 We agree with the State. Reading Beachem in conjunction with section 5-4.5-100 as
presently constituted, we find that home confinement pursuant to an appeal bond does not
qualify as custody entitling one to credit against his sentence under the statute.
¶ 36 Beachem supports our holding and serves to guide us in interpreting section 5-4.5-100.
The Beachem court found section 5-8-7 was "ambiguous because the term 'custody' has several
definitions and nothing in the context of the statute provides any indication as to the appropriate
definition." Beachem, 229 Ill. 2d at 246. While the legislature amended the crediting statute,
repealing section 5-8-7 and creating section 5-4.5-100, it did nothing to provide a definitive
definition of what it considers "custody" under the statute. As such, Beachem's analysis still
guides us to determine whether this defendant was in custody for purposes of the crediting
statute.
¶ 37 As noted above, when differentiating between the defendant required to report to the Day
Reporting Center in Beachem from the defendants released on bond in Morrison and Ramos, the
Beachem court discussed all the protections afforded someone released on bond, such as the
ability to challenge the conditions of release. The Beachem court further focused on the fact that
it was the sheriff's department, not the court, which "unilaterally imposed conditions of
participation" upon the participant in the Day Reporting Program. (Internal quotation marks
omitted.) Beachem, 229 Ill. 2d at 251. The Beachem court stressed that any violation of the
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conditions imposed by the sheriff's department "could result in his immediate arrest and
reincarceration." Id. at 253.
¶ 38 Conversely, the conditions of this defendant's home confinement were not set by the
executive branch but, instead, by the court. A violation of those conditions, as noted in the
court's order, would not result in immediate arrest but instead, "Any violation is to be reported to
the on-call Grundy County State's Attorney *** and defense counsel office of Jeff Tomzcack."
¶ 39 Unlike the Beacham defendant, who had no recourse but to accept the terms of the Day
Reporting Program, the defendant herein could and, in fact, did petition the court to change his
terms of home confinement. After learning the Grundy County probation department did not
have the technology to provide the SCRAM device as originally ordered, defendant petitioned
the court and was allowed to have the "Traffic School" monitor his device.
¶ 40 Defendant does not address any of the substantive differences from the conditions of
Beachem's Day Reporting Program to his conditions of release on appeal bond. He merely states
that his home confinement while released on bond equates to home detention under the
Electronic Home Detention Law (730 ILCS 5/5-8A-1 et seq. (West 2012)) and that the current
crediting statute mandates the court "shall give credit to the defendant for time spent in home
detention" (730 ILCS 5/5-4.5-100(b) (West 2012)). Therefore, defendant argues he is entitled to
the credit. Again, we disagree.
¶ 41 The Home Detention Law defines home detention as "the confinement of a person
convicted or charged with an offense to his or her place of residence under the terms and
conditions established by the supervising authority." 730 ILCS 5/5-8A-2(C) (West 2012).
"Supervising authority" is defined as "the Department of Corrections, probation supervisory
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authority, sheriff, superintendent of municipal house of corrections or any other officer or agency
charged with authorizing and supervising home detention." 730 ILCS 5/5-8A-2(E) (West 2012).
¶ 42 Defendant argues that the terms of his release satisfy all the necessary elements to be
considered home detention under the Home Detention Law. Specifically, he states that
defendant's electronic monitoring was "supervised by probation." It was not. It was supervised
by a private traffic school. Even if defendant's home confinement was supervised by the
probation department, it would not meet the definition of home detention under the law. To
satisfy the definition of home detention, the confinement must be "under the terms and
conditions established by the supervising authority." 730 ILCS 5/5-8A-2(C) (West 2012).
¶ 43 What authority did the probation department have to set the terms and conditions of
defendant's release on appeal bond? The answer, of course, is none. It was the trial court that
"established" the "terms and conditions" of defendant's release. Defendant possessed the same
right as the probation department to request that the court change the conditions and terms of his
release. The absence of a similar right weighed heavily in the Beachem court's decision to find
one ordered to report to a Day Reporting Program is "in custody" for purposes of the crediting
statute. The bottom line is that the whole point of the appeal bond, like every other bond, was to
avoid custody. Virtually every bond has restrictions, this one more than some. That does not
change the very simple premise that the Code does not anticipate sentencing credit for time spent
while released on bond. Our supreme court was unequivocal when holding that for purposes of
sentencing credit, time spent in custody does not include that period of time during which a
defendant is released on bond, regardless of the restrictions imposed as a condition of release.
Ramos, 138 Ill. 2d at 160. We hold that defendant was not in custody within the meaning of
section 5-4.5-100(b) (730 ILCS 5/5-4.5-100(b) (West 2012)) while released on appeal bond.
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¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, the judgment of the circuit court of Grundy County is
affirmed.
¶ 46 Affirmed.
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