People v. Revell

NOS. 4-04-0835, 4-04-0854 cons. Filed 4/18/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DAVID D. REVELL, ) Nos. 03CF654
Defendant-Appellant. ) 03CF2156
)
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In April and May 2004, defendant, David D. Revell,
pleaded guilty to possession of child pornography (720 ILCS 5/11-
20.1(a)(6) (West 2002)) and predatory criminal sexual assault of
a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) in two separate
cases. Following a consolidated sentencing hearing, the trial
court sentenced defendant to 5 years' imprisonment for possession
of child pornography to run consecutive to a 40-year prison term
for predatory criminal sexual assault of a child. The court
awarded defendant 463 days of sentence credit.
Defendant appealed, arguing (1) the penalty for subsec-
tion (a)(1) of the predatory-criminal-sexual-assault-of-a-child
statute (720 ILCS 5/12-14.1(a)(1) (West 2002)) violates the
proportionate-penalties and due-process clauses of the Illinois
Constitution and (2) he is entitled to 15 additional days of
sentence credit. We affirm as modified and remand with direc-
tions.
I. BACKGROUND
This case involves consolidated appeals of Champaign
County case Nos. 03-CF-654 and 03-CF-2156. However, the
sentence-credit issue also requires an examination of Champaign
County case No. 03-CF-580, and defendant has provided the record
of that case on appeal.
On April 2, 2003, defendant was arrested for aggravated
criminal sexual abuse (720 ILCS 5/12-16(c)(1) (West 2002)) in
Champaign County case No. 03-CF-580. On April 3, 2003, he was
released on his own recognizance. The indictment alleged that
from August 2, 2002, until April 3, 2003, defendant committed
acts of sexual conduct with a seven-year-old female by rubbing
her vaginal area through her clothes with his hands.
On April 11, 2003, defendant was arrested for child
pornography in Champaign County case No. 03-CF-654. The indict-
ment alleged that on April 11, 2003, defendant knowingly pos-
sessed a photograph of a female child engaging in sexual penetra-
tion with an adult male and that defendant reasonably should have
known the female was under the age of 18.
In November 2003, defendant pleaded guilty in case No.
03-CF-580.
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On December 15, 2003, the State charged defendant by
information with two counts of predatory criminal sexual assault
of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) and four counts
of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2002))
in case No. 03-CF-2156. On December 29, 2003, defendant moved to
withdraw his guilty plea in case No. 03-CF-580 on the basis that
new charges were filed against him that deprived him of any
benefit he could receive from pleading guilty. On January 7,
2004, the trial court allowed defendant to withdraw his guilty
plea.
In January 2004, the grand jury indicted defendant on
two counts of predatory criminal sexual assault of a child (720
ILCS 5/12-14.1(a)(1) (West 2002)), four counts of criminal sexual
assault (720 ILCS 5/12-13(a)(1) (West 2002)), and two counts of
child pornography (720 ILCS 5/11-20.1(a)(1)(ii) (West 2002)) in
case No. 03-CF-2156. As is relevant to this appeal, count I,
charging defendant with predatory criminal sexual assault,
alleged that from June 2002 until March 31, 2003, defendant, a
person 17 years of age or older, committed an act of sexual
penetration on a person under 13 years of age by placing his sex
organ in the victim's sex organ. The same victim was involved in
case No. 03-CF-580 and case No. 03-CF-2156.
In April 2004, defendant entered an open plea to the
possession-of-child-pornography charge in case No. 03-CF-654.
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Before accepting the plea, the trial court informed defendant
that the offense was a Class 3 felony punishable by not less than
two nor more than five years' imprisonment. After admonishments,
confirming the voluntariness of the plea, and hearing a factual
basis, the court accepted defendant's plea.
In May 2004, defendant pleaded guilty to count I,
predatory criminal sexual assault, in case No. 03-CF-2156. The
State informed the trial court that in exchange for defendant's
plea of guilty to count I, the State would dismiss the remaining
counts and also dismiss case No. 03-CF-580. The State also
agreed to limit its recommendation at the sentencing hearing to a
term of 50 years' imprisonment in case No. 03-CF-2156.
Before accepting the plea, the trial court informed
defendant that the offense was a Class X felony with a minimum
sentence of 6 years and a maximum sentence of 60 years in prison.
The court also reminded defendant that he had already pleaded
guilty to possession of child pornography, a Class 3 felony,
carrying a sentence of two to five years' imprisonment. The
State informed the court of its belief that the child-pornography
sentence would have to be served consecutively to the predatory-
criminal-sexual-assault sentence. After giving defendant his
admonishments, confirming the voluntariness of the plea, and
hearing a factual basis, the court accepted the plea.
The trial court consolidated case Nos. 03-CF-654 and
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03-CF-2156 for sentencing and postsentencing. At the July 2004
sentencing hearing, the court sentenced defendant to 5 years'
imprisonment for possession of child pornography to run consecu-
tively to a 40-year prison term for predatory criminal sexual
assault. The court awarded defendant 463 days of sentence credit
for the period of April 11, 2003, through July 29, 2004. The
court applied all of defendant's sentence credit to the
predatory-criminal-sexual-assault conviction and none to the
possession-of-child-pornography conviction. In September 2004,
defendant filed, and the trial court denied, motions to withdraw
the guilty pleas and motions to reconsider the sentences.
This appeal followed.
II. ANALYSIS
A. Extended-Term Sentencing
Defendant argues the penalty for a violation of section
12-14.1(a)(1) of the Criminal Code of 1961 (Criminal Code)
violates the proportionate-penalties and due-process clauses of
the Illinois Constitution. Specifically, defendant claims that
the offense for which he was convicted, predatory criminal sexual
assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)),
carries a harsher penalty than the more serious crimes of preda-
tory criminal sexual assault of a child while armed with a
firearm (720 ILCS 5/12-14.1(a)(1.1) (West 2002)) and predatory
criminal sexual assault of a child involving the discharge of a
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firearm (720 ILCS 5/12-14.1(a)(1.2) (West 2002)).
Defendant acknowledges that this court, in People v.
Dunn, 365 Ill. App. 3d 292, 296-97, 849 N.E.2d 148, 151 (2006),
rejected the same proportionate-penalties argument but asks this
court to overrule Dunn. Defendant alternatively asks this court
to find that the statute violates the due-process clause of the
Illinois Constitution (Ill. Const. 1970, art. I, §2), an issue
neither raised nor addressed in Dunn.
In Dunn, this court rejected the same proportionate-
penalties argument defendant raises in this case. Dunn, 365 Ill.
App. 3d at 296-97, 849 N.E.2d at 151. Specifically, we held that
the penalty for predatory criminal sexual assault of a child did
not violate the proportionate-penalties clause under the
identical-elements test. Dunn, 365 Ill. App. 3d at 296-97, 849
N.E.2d at 151. We decline to overrule Dunn. However, the
defendant in Dunn did not challenge the penalty for predatory
criminal sexual assault of a child on the basis of due process, a
claim defendant raises here.
For the reasons that follow, we conclude that no
disproportionate penalty exists at all. The crux of defendant's
argument is that the extended-term sentencing provisions apply
only to section 12-14.1(a)(1) of the Criminal Code and not to
sections 12-14.1(a)(1.1) and (a)(1.2). We find the extended-term
sentencing provisions also apply to sections 12-14.1(a)(1.1) and
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(a)(1.2).
1. Statutory Background
An examination of the relevant statutory provisions is
required. As late as 1994, the statute for aggravated criminal
sexual assault included two crimes: (1) our now predatory crimi-
nal sexual assault and (2) our now aggravated criminal sexual
assault. See 720 ILCS 5/12-14(b) (West 1994). Former section
12-14(b)(1) of the Criminal Code provided a person commits
aggravated criminal sexual assault when:
"(1) the accused was 17 years of age or
over and commits an act of sexual penetration
with a victim who was under 13 years of age
when the act was committed." 720 ILCS 5/12-
14(b)(1) (West 1994).
Aggravated criminal sexual assault was a Class X felony (720 ILCS
5/12-14(d) (West 1994)) with a sentencing range of 6 to 30 years'
imprisonment. 730 ILCS 5/5-8-1(a)(3) (West 1994). However,
section 5-5-3.2(c) of the Unified Code of Corrections (Unified
Code) allowed a trial court to impose an extended-term sentence
upon any offender convicted of aggravated criminal sexual assault
when the victim was under 18 years of age at the time the offense
was committed. 730 ILCS 5/5-5-3.2(c) (West 1994). The extended
term for a Class X felony was, and remains, not less than 30 nor
more than 60 years' imprisonment. 730 ILCS 5/5-8-2(a)(2) (West
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1994); 730 ILCS 5/5-8-2(a)(2) (West 2004).
Effective December 13, 1995, the legislature divided
the aggravated-criminal-sexual-assault statute. See Pub. Act 89-
428, art. 2, §260, eff. December 13, 1995 (1995 Ill. Laws 4453,
4506) (amending 720 ILCS 5/12-14.1(a) (West 1994)); see also In
re Donald A.G., 221 Ill. 2d 234, 247, 850 N.E.2d 172, 179 (2006).
The language formerly contained in section 12-14(b)(1) was named
"predatory criminal sexual assault of a child" and became section
12-14.1(a)(1) of the Criminal Code. See 720 ILCS 5/12-14.1(a)(1)
(West 1996); Donald A.G., 221 Ill. 2d at 247, 850 N.E.2d at 179.
Effective July 15, 1999, the legislature also amended
section 5-5-3.2(c) of the Unified Code to specifically reference
the predatory-criminal-sexual-assault-of-a-child statute. Pub.
Act 91-120, §5, eff. July 15, 1999 (1999 Ill. Laws 1995, 1995-96)
(amending 730 ILCS 5/5-5-3.2(c) (West 1998)). Section 5-5-3.2(c)
provided, and continues to provide, as follows:
"The court may impose an extended[-]term
sentence under [s]ection 5-8-2 upon any of-
fender who was convicted of aggravated crimi-
nal sexual assault or predatory criminal
sexual assault of a child under subsection
(a)(1) of [s]ection 12-14.1 of the Criminal
Code of 1961 where the victim was under 18
years of age at the time of the commission of
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the offense." (Emphasis added.) 730 ILCS
5/5-5-3.2(c) (West 2000).
Effective January 1, 2000, the legislature added two
additional subsections to the predatory-criminal-sexual-assault-
of-a-child statute. See Pub. Act 91-404, §5, eff. January 1,
2000 (amending 720 ILCS 5/12-14.1(a) (West 1998)). Pursuant to
the amendment, the statute provided, and continues to provide, as
follows:
"(a) The accused commits predatory
criminal sexual assault of a child if:
(1) the accused was 17 years
of age or over and commits an act
of sexual penetration with a victim
who was under 13 years of age when
the act was committed; or
(1.1) the accused was 17 years
of age or over and, while armed
with a firearm, commits an act of
sexual penetration with a victim
who was under 13 years of age when
the act was committed; or
(1.2) the accused was 17 years
of age or over and commits an act
of sexual penetration with a victim
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under 13 years of age when the act
was committed and, during the com-
mission of the offense, the accused
personally discharged a firearm."
720 ILCS 5/12-14.1(a)(1), (a)(1.1),
(a)(1.2) (West 2000).
The legislature articulated its intent in enacting these provi-
sions in sections 33A-1(a) and (b) of the armed-violence section
of the Criminal Code. See 720 ILCS 5/33A-1(a), (b) (West 2004);
People v. Sharpe, 216 Ill. 2d 481, 531-32 n.5, 839 N.E.2d 492,
523 n.5 (2005) (noting that while the provisions articulating the
legislature's intent are contained in the armed-violence statute,
the findings were enacted as part of Public Act 91-404 and
expressed the legislature's intent in enacting the firearm
enhancements). Section 33A-1 provides as follows:
"(a) Legislative findings. The legisla-
ture finds and declares the following:
(1) The use of a dangerous
weapon in the commission of a fel-
ony offense poses a much greater
threat to the public health,
safety, and general welfare, than
when a weapon is not used in the
commission of the offense.
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(2) Further, the use of a
firearm greatly facilitates the
commission of a criminal offense
because of the more lethal nature
of a firearm and the greater per-
ceived threat produced in those
confronted by a person wielding a
firearm. Unlike other dangerous
weapons such as knives and clubs,
the use of a firearm in the commis-
sion of a criminal felony offense
significantly escalates the threat
and the potential for bodily harm,
and the greater range of the fire-
arm increases the potential for
harm to more persons. Not only are
the victims and bystanders at
greater risk when a firearm is
used, but also the law enforcement
officers whose duty it is to con-
front and apprehend the armed sus-
pect.
(3) Current law does contain
offenses involving the use or dis-
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charge of a gun toward or against a
person, such as aggravated battery
with a firearm, aggravated
discharge of a firearm, and reck-
less discharge of a firearm; how-
ever, the General Assembly has
legislated greater penalties for
the commission of a felony while in
possession of a firearm because it
deems such acts as more serious.
(b) Legislative intent.
(1) In order to deter the use
of firearms in the commission of a
felony offense, the General Assem-
bly deems it appropriate for a
greater penalty to be imposed when
a firearm is used or discharged in
the commission of an offense than
the penalty imposed for using other
types of weapons and for the pen-
alty to increase on more serious
offenses.
(2) With the additional ele-
ments of the discharge of a firearm
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and great bodily harm inflicted by
a firearm being added to armed
violence and other serious felony
offenses, it is the intent of the
General Assembly to punish those
elements more severely during com-
mission of a felony offense than
when those elements stand alone as
the act of the offender." 720 ILCS
5/33A-1(a), (b) (West 2002).
When the legislature added subsections (a)(1.1) and
(a)(1.2), the legislature also created penalties for the of-
fenses. Violations of subsections (a)(1), (a)(1.1), and (a)(1.2)
all constitute Class X felonies. 720 ILCS 5/12-14.1(b) (West
2002). However, a term of 15 and 20 years respectively shall be
added to the term of imprisonment imposed by the court for
violations of subsections (a)(1.1) and (a)(1.2). 720 ILCS 5/12-
14.1(b) (West 2002).
2. Extended-Term Sentencing Applies to Subsections (a)(1),
(a)(1.1), and (a)(1.2)
Defendant argues that despite predatory criminal sexual
assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) consti-
tuting a lesser-included offense of predatory criminal sexual
assault of a child while armed with a firearm (720 ILCS 5/12-
14.1(a)(1.1) (West 2002)) and predatory criminal sexual assault
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of a child involving the discharge of a firearm (720 ILCS 5/12-
14.1(a)(1.2) (West 2002)), a violation of subsection (a)(1)
carries a more severe penalty than a violation of subsection
(a)(1.1) or (a)(1.2). Defendant contends that under the express
terms of section 5-5-3.2(c), only section 12-14.1(a)(1) of the
Criminal Code is subject to an extended-term sentencing range of
30 to 60 years. Because, according to defendant, sections 12-
14.1(a)(1.1) and (a)(1.2) are not subject to an extended-term
sentence, a person convicted of those crimes faces only an
additional 15 or 20 years respectively added to the general Class
X sentence range. That is, predatory criminal sexual assault of
a child while armed with a firearm only carries a possible
sentence of 21 to 45 years' imprisonment (the minimum 6 years
plus 15 years and the maximum 30 years plus 15 years) and preda-
tory criminal sexual assault of a child involving the discharge
of a firearm only carries a possible sentence of 26 to 50 years
(the minimum 6 years plus 20 years and the maximum 30 years plus
20 years).
Citing People v. Bradley, 79 Ill. 2d 410, 403 N.E.2d
1029 (1980), defendant argues that the disparity in sentencing
between committing predatory criminal sexual assault of a child
with and without a firearm violates the due-process clause of the
Illinois Constitution. In Bradley, the supreme court found that
section 402(b) of the Illinois Controlled Substances Act (Ill.
- 14 -
Rev. Stat. 1977, ch. 56 1/2, par. 1402(b)) violated the due-
process clause of the Illinois Constitution because it provided a
greater penalty for possession of the controlled substance than
for delivery of the same controlled substance under section
401(e) (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(e)).
Bradley, 79 Ill. 2d at 418, 403 N.E.2d at 1032. Such result was
clearly contrary to the legislature's intent to punish traffick-
ing more severely than possession. Bradley, 79 Ill. 2d at 418,
403 N.E.2d at 1032.
After examining defendant's due-process argument and
the relevant statutory provisions, we conclude that no dispropor-
tionate penalty exists at all because section 5-5-3.2(c) of the
Unified Code also applies to sections 12-14.1(a)(1.1) and
(a)(1.2).
Issues of statutory construction and the constitution-
ality of statutes are questions of law reviewed de novo. Dunn,
365 Ill. App. 3d at 294, 849 N.E.2d at 149; Donald A.G., 221 Ill.
2d at 246, 850 N.E.2d at 179. As this court stated in Dunn:
"A statute carries a strong presumption of
constitutionality, and thus the party chal-
lenging the statute must clearly establish it
violates the constitution. Moreover, we
generally give deference to the legislature
on sentencing matters because 'the legisla-
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ture is institutionally better equipped to
gauge the seriousness of various offenses and
to fashion sentences accordingly.'" Dunn,
365 Ill. App. 3d at 294, 849 N.E.2d at 149,
quoting Sharpe, 216 Ill. 2d at 487, 839
N.E.2d at 497.
The primary consideration in construing a statute is to
determine and give effect to the legislature's intent. People v.
Skillom, 361 Ill. App. 3d 901, 906, 838 N.E.2d 117, 122 (2005).
A court must consider the statute in its entirety. People v.
Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641, 644 (2002). "The
most reliable indicator of legislative intent is the language of
the statute, which, if plain and unambiguous, must be read
without exception, limitation, or other condition." Davis, 199
Ill. 2d at 135, 766 N.E.2d at 644.
However, courts should also consider "the 'reason and
necessity for the law, the evils to be remedied, and the objects
and purposes to be obtained.'" People v. Parker, 123 Ill. 2d
204, 209, 526 N.E.2d 135, 137 (1988), quoting People v. Haywood,
118 Ill. 2d 263, 271, 515 N.E.2d 45, 49 (1987). Further, "if the
intent and purpose of the legislature can be determined from a
statute, 'words may be modified, altered, or even supplied so as
to obviate any repugnancy or inconsistency with the legislative
intention.'" Parker, 123 Ill. 2d at 210-11, 526 N.E.2d at 138,
- 16 -
quoting People v. Bratcher, 63 Ill. 2d 534, 543, 349 N.E.2d 31,
35 (1976). Finally, "[w]hile penal statutes are to be strictly
construed in favor of an accused, they must not be construed so
rigidly as to defeat the intent of the legislature." Parker, 123
Ill. 2d at 213, 526 N.E.2d at 139. "[W]e are not bound by the
literal language of a statute if that language produces absurd or
unjust results not contemplated by the legislature." Donald
A.G., 221 Ill. 2d at 246, 850 N.E.2d at 179.
Given the legislature's stated intent, it is clear that
the legislature's failure to amend section 5-5-3.2(c) to specifi-
cally include reference to sections 12-14.1(a)(1.1) and (a)(1.2)
was merely an oversight. Section 5-5-3.2(c) allows a trial court
to impose an extended-term sentence upon a defendant convicted of
"predatory criminal sexual assault of a child under subsection
(a)(1) of [s]ection 12-14.1." 730 ILCS 5/5-5-3.2(c) (West 2002).
A person commits predatory criminal sexual assault of a child
when a person 17 years old or older commits an act of sexual
penetration on a victim under 13 years old. 720 ILCS 5/12-
14.1(a)(1) (West 2002). The only additional element involved in
subsections (a)(1.1) and (a)(1.2) is the presence or discharge of
a firearm, a factor the legislature specifically intended to
punish more severely. See 720 ILCS 5/33A-1(b)(2) (West 2004).
The legislature specifically stated it intended to impose a
greater penalty for the commission of a felony while in the
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possession of a firearm. See 720 ILCS 5/33A-1(a)(2), (b)(1),
(b)(2) (West 2002).
This case is analogous to Donald A.G. In Donald A.G.,
the supreme court found that the statutory presumption of deprav-
ity in section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i)
(West 2002)) applied to a parent convicted of predatory criminal
sexual assault of a child, despite that offense not being enumer-
ated therein. Donald A.G., 221 Ill. 2d at 247-48, 850 N.E.2d at
179-80. The supreme court noted that when the legislature
enacted section 1(D)(i) of the Adoption Act, section 12-
14.1(a)(1) of the Criminal Code did not exist. Donald A.G., 221
Ill. 2d at 246, 850 N.E.2d at 179. Moreover, the language
contained in section 12-14.1(a)(1) was identical to the language
of the crime specifically enumerated in section (1)(D)(i) of the
Adoption Act, section 12-14(b)(1), aggravated criminal sexual
assault. Donald A.G., 221 Ill. 2d at 247, 850 N.E.2d at 179.
Consequently, the court concluded as follows:
"In sum, our review of the legislative
history leads us to conclude that the legis-
lature made an inadvertent drafting error in
stating that the presumption of depravity
applied to the offense of aggravated criminal
sexual assault. The legislature intended for
the presumption to apply to the conduct which
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now comprises the offense of predatory crimi-
nal sexual assault of a child." Donald A.G.,
221 Ill. 2d at 250, 850 N.E.2d at 180-81.
Similarly here, when the legislature amended section 5-
5-3.2(c) to include section 12-14.1(a)(1) as a basis for imposing
an extended term, sections 12-14.1(a)(1.1) and (a)(1.2) did not
exist. After the legislature created sections 12-14.1(a)(1.1)
and (a)(1.2), the legislature inadvertently failed to amend
section 5-5-3.2(c) to include specific reference to sections 12-
14.1(a)(1.1) and (a)(1.2). Given the legislature's stated intent
to treat certain crimes involving the presence or discharge of
firearms more harshly, and given the fact that sections 12-
14.1(a)(1.1) and (a)(1.2) involve the same underlying offense as
section (a)(1), the omission of a reference to sections 12-
14.1(a)(1.1) and (a)(1.2) is simply a result of legislative
oversight, and reference to said sections should be read into the
statute. See People v. Chandler, 129 Ill. 2d 233, 253, 543
N.E.2d 1290, 1298 (1989) (noting that the "judiciary possesses
the authority to read language into a statute which has been
omitted through legislative oversight"); People v. Smith, 307
Ill. App. 3d 414, 421, 718 N.E.2d 640, 644 (1999) (finding that
the absence of the language "predatory criminal sexual assault of
a child" from the sentencing provisions of the indecent-
soliciation statute was simply legislative oversight and such
- 19 -
language should be read into the statute); Parker, 123 Ill. 2d at
210, 526 N.E.2d at 138 (finding that although the sexual-
relations-within-families statute did not specifically identify
"stepparents," stepparents were clearly within the group of
persons covered by the statute). Finally, the penalty for a
violation of section 12-14.1(a)(1) is not more severe than the
penalty for a violation of sections 12-14.1(a)(1.1) and (a)(1.2),
and defendant has not been denied due process.
B. Sentence Credit
The trial court awarded defendant 463 days of sentence
credit for time spent in custody from April 11, 2003, the date
defendant was arrested in case No. 03-CF-654, until July 29,
2004, the date of sentencing. Defendant argues he is entitled to
(1) an additional 13 days of sentence credit for the time period
between April 11, 2003, and July 29, 2004, and (2) 2 days of
sentence credit for time spent in custody on case No. 03-CF-580.
1. April 11, 2003, through July 29, 2004
Defendant first argues that counting the first and last
day between April 11, 2003, and July 29, 2004, and taking into
account that 2004 was a leap year, he is entitled to an addi-
tional 13 days of sentence credit for that time period. The
State correctly concedes defendant is entitled to an additional
12 days for that time period but disputes defendant's entitlement
to sentence credit for the day of sentencing, July 29, 2004.
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Here, defendant was sentenced to imprisonment on July
29, 2004. At the conclusion of the sentencing hearing, the trial
court remanded defendant to the custody of the sheriff for
transportation to the Department of Corrections (DOC). In
addition, the preprinted judgment forms in both cases contain the
following provision: "That the [s]heriff take the [d]efendant
into custody and deliver him to the [DOC] which shall confine
said [d]efendant until expiration of his sentence or until he is
otherwise released by operation of law." See 730 ILCS 5/5-8-7(c)
(West 2004).
In People v. Foreman, 361 Ill. App. 3d 136, 157, 836
N.E.2d 750, 768 (2005), the First District stated that "while a
defendant is entitled to credit for each day he or she spends in
custody prior to being sentenced, a defendant will not be cred-
ited for the day of sentencing in which he is remanded to the
Department of Corrections." See also People v. Stewart, 217 Ill.
App. 3d 373, 377, 577 N.E.2d 175, 177 (1991) (Third District);
People v. Leggans, 140 Ill. App. 3d 268, 270-71, 488 N.E.2d 614,
615 (1986) (Fifth District). The "purpose of the 'credit-
against-sentence' provision contained in section 5-8-7(b) is to
ensure that defendants do not ultimately remain incarcerated for
periods in excess of their eventual sentences." People v.
Latona, 184 Ill. 2d 260, 270, 703 N.E.2d 901, 906 (1998). By not
crediting a defendant for the day of sentencing in which he is
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remanded to prison, a defendant will not ultimately remain
incarcerated for a period in excess of his sentence. Instead,
his prison sentence will begin, and he will no longer be in
custody "prior to sentencing."
The issue is less clear when a defendant's transfer to
DOC does not occur immediately, since section 5-8-7(a) of the
Unified Code (730 ILCS 5/5-8-7(a) (West 2004)) provides "[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." Although defendant recog-
nizes the likelihood that a defendant will not be transported to
DOC on the date of sentencing, he does not argue that he was in
fact remanded to DOC's custody later than July 29, 2004. In-
stead, defendant simply argues that by following Foreman, this
court increases the likelihood that a defendant will lose a day
of sentence credit and the $5 fine credit for the day of sentenc-
ing.
However, a prisoner may remain in the county jail and
still be in the custody of DOC. See, e.g., People v. King, 366
Ill. App. 3d 552, 557, 852 N.E.2d 559, 563 (2006) (because DOC
essentially had authority over defendant, the county jail was the
equivalent of a DOC institution; therefore, the intrastate-
detainer statute was the applicable speedy-trial provision).
However, without any indication that defendant was not received
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by DOC on July 29, 2004, and without DOC's affidavit of its
calculation of credit, this court is unable to address whether
defendant received credit from DOC toward his term of imprison-
ment for any days served before he was received by DOC.
2. Credit for Days Served in Case No. 03-CF-580
Defendant also seeks the two additional days of sen-
tence credit for the time he served in custody in case 03-CF-580.
Defendant was arrested in case No. 03-CF-580 on April 2, 2003,
and released on his own recognizance on April 3, 2003.
Section 5-8-7(c) of Unified Code provides as follows:
"An offender arrested on one charge and
prosecuted on another charge for conduct
which occurred prior to his arrest shall be
given credit on the determinate sentence or
maximum term and the minimum term of impris-
onment for time spent in custody under the
former charge not credited against another
sentence." 730 ILCS 5/5-8-7(c) (West 2004).
The State argues defendant is not entitled to the two
days of credit relating to case No. 03-CF-580 because the
aggravated-criminal-sexual-abuse charge in case No. 03-CF-580 was
not based upon the same conduct as the predatory-criminal-sexual-
assault charge in case No. 03-CF-2156, to which defendant pleaded
guilty and on which he was sentenced. In support of its argu-
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ment, the State points to the Council Commentary to section 5-8-
7(c) stating that subsection (c) "provides for the case, not
covered under former law, where all confinement since arrest is
credited against the sentence even if the original charge is
dropped in favor of a new charge with results in conviction and
imprisonment." 730 ILCS Ann. 5/5-8-7, Council Commentary--1973,
at 622 (Smith-Hurd 1997). The State also notes, citing People v.
Kane, 136 Ill. App. 3d 1030, 1036, 484 N.E.2d 296, 300 (1985),
that the purpose of subsection (c) is to prevent the State from
defeating a defendant's right to credit for jail time by dropping
one charge in favor of another charge based on the same conduct.
When construing a statute, the primary consideration is
to determine and give effect to the legislature's intent.
Skillom, 361 Ill. App. 3d at 906, 838 N.E.2d at 122. A court
must consider the statute in its entirety. Davis, 199 Ill. 2d at
135, 766 N.E.2d at 644. "The most reliable indicator of legisla-
tive intent is the language of the statute, which, if plain and
unambiguous, must be read without exception, limitation, or other
condition." Davis, 199 Ill. 2d at 135, 766 N.E.2d at 644.
Here, the plain language of the statute provides
defendant is entitled to the two days spent in custody in case
No. 03-CF-580. The facts underlying the aggravated-criminal-
sexual-abuse charge in case No. 03-CF-580 occurred between August
2, 2002, and April 3, 2003. Although defendant pleaded guilty to
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the charge, he successfully moved to withdraw his guilty plea
after the State filed new charges against him. The predatory-
criminal-sexual-abuse charge alleged conduct in case No. 03-CF-
2156 occurring between June 2002 until March 31, 2003--all
conduct prior to defendant's arrest in April 2003 in case No. 03-
CF-580. Therefore, because defendant (1) was arrested in case
No. 03-CF-580, (2) was prosecuted in case No. 03-CF-2156 which
involved conduct that occurred prior to his arrest in case No.
03-CF-580, and (3) did not receive credit for the time spent in
custody in No. 03-CF-580 against another sentence, defendant is
entitled to an additional two days' credit. Although the State
did not expressly drop the initial charge and recharge defendant
with another crime, that was the end result. That is, the
predatory-criminal-sexual-assault charge essentially replaced the
aggravated-criminal-sexual-abuse charge. See, e.g., People v.
Rowell, No. 4-04-0481, slip op. at 4 (December 15, 2006) (wherein
the State conceded that where the misdemeanor charge was dis-
missed and replaced with a felony charge, the defendant was
entitled to sentencing credit for the two days he spent in
custody for the misdemeanor charge). Therefore, defendant is
entitled to two additional days' credit for time served.
III. CONCLUSION
For the reasons stated, we affirm defendant's convic-
tion and sentence and modify the sentence to reflect an addi-
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tional 14 days of sentence credit and remand for issuance of an
amended judgment of sentence. As part of our judgment, we grant
the State its statutory assessment of $50 against defendant as
costs of this appeal.
Affirmed as modified; cause remanded with directions.
APPLETON and KNECHT, JJ., concur.
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