                                        2017 IL App (3d) 140907

                               Opinion filed January 31, 2017
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2017

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 12th Judicial Circuit,
                                                     )       Will County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-14-0907
            v.                                       )       Circuit No. 12-CF-732
                                                     )
     CHRISTOPHER BROWN,                              )       Honorable
                                                     )       Carla Alessio-Policandriotes,
            Defendant-Appellant.                     )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Presiding Justice Holdridge concurred in the judgment and opinion.
           Justice Wright dissented, with opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Defendant, Christopher Brown, appeals the denial of his request to correct the mittimus

     to reflect additional presentence custody credit. We vacate and remand with directions.

¶2                                               FACTS

¶3          On March 29, 2012, the State filed a complaint against defendant. The circuit court in

     Will County issued an arrest warrant the same day. At the time, defendant was in the custody of

     Cook County. On May 2, 2012, the circuit court issued a petition for habeas corpus asking the

     Cook County sheriff’s department to deliver defendant to the circuit court in Will County on
     May 9, 2012. Defendant appeared on that day in the custody of the Cook County sheriff’s

     department and a public defender was appointed.

¶4             On May 9, 2013, the parties entered a plea agreement in which defendant would plead

     guilty to home invasion (720 ILCS 5/12-11(a)(1) (West 2010)) and receive a sentence of 11

     years’ imprisonment. At sentencing, the court asked if the mittimus indicated that defendant

     would receive presentence custody credit from May 9, 2012, to May 9, 2013. Defense counsel

     agreed. The court sentenced defendant pursuant to the plea agreement and gave him credit for

     time served from May 9, 2012, to May 9, 2013. Defendant was also ordered to pay monetary

     assessments, including, inter alia: (1) $30 Children’s Advocacy Center fee (55 ILCS 5/5-1101(f-

     5) (West 2012)), (2) $50 court systems fee (55 ILCS 5/5-1101 (West 2012)), (3) $10 specialized

     court fee (55 ILCS 5/5-1101(d-5) (West 2012)), (4) $100 crime laboratory analysis fee (730

     ILCS 5/5-9-1.4 (West 2012)), and (5) $100 Trauma Center Fund fee (730 ILCS 5/5-9-1.10 (West

     2012)).

¶5             Defendant did not file a motion to reconsider sentence or a direct appeal, but on

     October 27, 2014, he filed a pro se motion for order nunc pro tunc requesting the circuit court

     correct the mittimus to reflect credit for time he spent in custody in Cook County. The court

     asked the State to review the motion, and the prosecutor stated, “[Defendant] is looking for time

     credit when he was in Cook County. However, the time he is looking for was before he was even

     charged with this crime. He is certainly not entitled to it on this case.” The circuit court denied

     the motion.

¶6                                              ANALYSIS

¶7             On appeal, defendant argues that (1) he should receive presentence custody credit

     beginning on the date he was charged and the arrest warrant was issued, equaling an additional


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       41 days of presentence custody credit, (2) his $100 Trauma Center Fund and crime laboratory

       analysis fees must be vacated because he was not convicted of any offense that required the

       imposition of those fees, and (3) he should receive $5-per-day presentence custody credit against

       his fines.

¶8             At the outset, we note that defendant incorrectly labeled his request for additional

       presentence custody credit as a “Motion for Order Nunc Pro Tunc.” As nunc pro tunc orders may

       not be used to challenge a court’s previous decision, we will construe defendant’s motion as a

       motion to correct the mittimus. See People v. White, 357 Ill. App. 3d 1070, 1072-73 (2005).

¶9             Section 5-4.5-100(b) of the Unified Code of Corrections states, “[an] offender shall be

       given credit on the determinate sentence or maximum term and the minimum period of

       imprisonment for the number of days spent in custody as a result of the offense for which the

       sentence was imposed.” 730 ILCS 5/5-4.5-100(b) (West 2012). Sentencing credit for time served

       is mandatory and a claim of error in calculating such credit cannot be forfeited. People v. Hill,

       2014 IL App (3d) 120472, ¶ 27; 1 see also People v. Johnson, 401 Ill. App. 3d 678, 680 (2010).

¶ 10           Here, defendant was charged and a warrant was issued on March 29, 2012, while

       defendant was in the custody of Cook County. While the dissent takes issue with the fact that

       defendant did not provide any certified records with regard to his custodial standing, we note the

       State does not dispute that defendant was in the custody of the Cook County sheriff. In fact, the

       State’s appellee brief provides, “The defendant was in the custody of Cook County until his first

       appearance with Will County on May 9, 2012.” We also note that the report of proceedings from

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                 Although this court in Hill discussed waiver, we note—as has the supreme court itself—that
       there is a distinct difference between waiver and forfeiture. See Buenz v. Frontline Transportation Co.,
       227 Ill. 2d 302, 320-21 n.2 (2008) (“While waiver is the voluntary relinquishment of a known right,
       forfeiture is the failure to timely comply with procedural requirements. [Citations.] These
       characterizations apply equally to criminal and civil matters.”). Thus the relinquishment of an argument
       through failure to bring it in the trial court is properly termed a forfeiture of that argument.
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       the trial court below reveals that both the court and the defense attorney specifically

       acknowledged that defendant was in Cook County’s custody. The report of proceedings and the

       State’s affirmation of the fact are consistent with the information on the Department of

       Corrections’ website. Accordingly, we hold defendant was in simultaneous custody for his Cook

       and Will County offenses on March 29, 2012.

¶ 11          An offender who is in simultaneous custody on two offenses is entitled to presentence

       custody credit on the newer offense beginning on the date he or she was charged and became

       subject to arrest. White, 357 Ill. App. 3d at 1075; People v. Robinson, 172 Ill. 2d 452, 463

       (1996); Johnson, 401 Ill. App. 3d at 681-83. Therefore, defendant is entitled to an additional 41

       days of presentence custody credit reflecting the period from when he was charged, March 29,

       2012, to the date he first appeared in Will County, May 9, 2012.

¶ 12          In coming to this conclusion, we reject the State’s reliance on People v. Williams, 384 Ill.

       App. 3d 415, 416-17 (2008), for the proposition that defendant must be held to his plea deal,

       even where the sentencing credit was wrongly calculated. In Williams, the defendant’s agreed

       sentence stated that he would not receive presentence custody credit. Id. at 416. Here,

       defendant’s plea agreement did not contain such a prohibition. Therefore, Williams is

       inapplicable.

¶ 13          We further reject the State’s reliance on People v. Seesengood, 266 Ill. App. 3d 351, 360

       (1994), for the proposition that a defendant is not held on charges relating to an offense until a

       warrant is actually served. Seesengood was decided before our supreme court decided Robinson,

       172 Ill. 2d 452. In Robinson, the court determined that a defendant is entitled to sentencing credit

       for both offenses when he is incarcerated on one charge and his bond is withdrawn or revoked on

       another charge as he is in simultaneous custody on both charges. Id. at 458-59. This court has


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       extended the rule of Robinson to give sentencing credit to a defendant at the time the defendant

       is charged and the arrest warrant is issued. See People v. Chamberlain, 354 Ill. App. 3d 1070,

       1074-75 (2005); White, 357 Ill. App. 3d at 1075. We will continue to rely on this line of case

       law.

¶ 14          Lastly, the State confesses error regarding the imposition of the Trauma Center Fund and

       crime laboratory analysis fees and agrees that defendant should receive $5-per-day presentence

       custody credit against his fines. After reviewing the record, we accept the State’s confession. As

       defendant was not convicted of any of the offenses for which the crime laboratory analysis and

       Trauma Center Fund fees may be assessed, we vacate those fees. See 730 ILCS 5/5-9-1.4, 5-9-

       1(c-5), 5-9-1.10, 5-9-1.1 (West 2012); 625 ILCS 5/16-104b (West 2012). The fines subject to

       presentence incarceration credit that were levied against defendant included the $30 Children’s

       Advocacy Center fee (People v. Jones, 397 Ill. App. 3d 651, 660 (2009)), $50 court systems fee

       (People v. Smith, 2013 IL App (2d) 120691, ¶¶ 17-21), and $10 specialized court fee (People v.

       Graves, 235 Ill. 2d 244, 249-55 (2009)). As defendant is entitled $5-per-day credit for 406 days’

       presentence custody, these fines are reduced to zero. We further note that the fines and fees in

       section 1 of the criminal cost sheet appear to be miscalculated. We remand for recalculation of

       defendant’s monetary assessments consistent with this order.

¶ 15          In coming to this conclusion, we acknowledge the dissent’s position in People v. Walker,

       2016 IL App (3d) 140766, ¶¶ 17-28, and People v. Carter, 2016 IL App (3d) 140196, ¶¶ 85-86,

       but we adhere to the majority opinions in those cases.

¶ 16                                            CONCLUSION

¶ 17          The judgment of the circuit court of Will County is vacated and remanded with

       directions.


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¶ 18          Vacated and remanded with directions.



¶ 19          JUSTICE WRIGHT, dissenting.

¶ 20          I respectfully dissent. In this case, defendant did not provide the trial court with any

       certified records from Cook County to support his motion for additional credit for time served

       prior to May 9, 2012. Therefore, the trial court correctly denied this request.

¶ 21          Similarly, defendant has not requested leave to supplement the record with certified

       copies of the Cook County records showing defendant was in custody in March 2012. Instead,

       defendant’s appendix contains information downloaded from the internet site belonging to the

       Illinois Department of Corrections (DOC). I am unwilling to rely on the downloaded DOC

       mittimus because it incorrectly shows defendant was convicted on count I of the charging

       instrument in the case at bar. I conclude there are likely other inaccuracies with respect to other

       information on this document.

¶ 22          The record on appeal is silent and does not conclusively establish whether defendant was

       in custody in Cook County in March 2012. Under these circumstances, the best way to measure

       when defendant was in custody on these charges is by considering the date the Will County

       warrant was served, which occurred on June 6, 2012. See People v. Seesengood, 266 Ill. App. 3d

       351 (1994). Yet, as part of the agreement, the State agreed to allow credit from defendant’s first

       appearance date in Will County on May 9, 2012, while the warrant was stayed by court order

       entered on April 26, 2012. I would uphold this plea agreement.

¶ 23          Next, I also dissent with the majority’s decision to remand this matter to the circuit court

       to recalculate monies due. Here, defendant did not timely challenge any fine or court cost

       recorded by the circuit clerk on May 9, 2013. Once again, like a broken record, I conclude both


                                                        6
       defendant and the State have forfeited any challenge to the $1086 balance due for the reasons

       expressed in my dissent in People v. Walker, 2016 IL App (3d) 140766, ¶¶ 16-29 and People v.

       Carter, 2016 IL App (3d) 140196, ¶¶ 85-86. I also reject the notion that the clerical errors give

       rise to a “void” sentence for reasons stated in those dissents.

¶ 24          Before addressing the propriety of defendant’s application for the $5 per diem credit that

       is presented to this court, I point out that the $5 per diem credit is not automatic. The parties

       often ignore the statute that requires a defendant to first make an “application” before the credit

       “shall be allowed.” 725 ILCS 5/110-14(a) (West 2012). In addition, several fines included in the

       $1086 total are not eligible for the per diem credit by statute.

¶ 25          Here, defense counsel understandably did not request the $5 per diem credit in the trial

       court, presumably because the court ordered defendant to pay costs only. Perhaps realizing he

       has forfeited any challenge to fines incorporated by the circuit clerk as court costs, defendant

       now applies for the $5 per diem credit to offset those fines that can no longer be challenged. This

       is a sound approach that results in a reduction of the balance due. In People v. Buffkin, 2016 IL

       App (2d) 140792, the court held there is “no impediment” to granting the $5 per diem credit

       defendant requests for the first time when before a reviewing court. Id. at ¶ 4.

¶ 26          After reviewing this record, I submit defendant has more than enough per diem credit to

       offset every fine eligible for the credit. Yet, the $10 Arrestee’s Medical Costs Fee, $100 Crime

       Lab Fee, and $100 Trauma Center Fee incorporated by the clerk in error as court costs are not

       eligible to be satisfied through application of the per diem credit. Due to procedural forfeiture, I

       respectfully disagree that these particular fines totaling $210 should be vacated by this court

       absent agreed revestment by the State.




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¶ 27          However, all other unchallenged fines included in defendant’s tally sheet should be

       reduced to zero since the State concedes defendant is entitled to receive at least 365 days of $5

       per diem credit from May 9, 2012, to May 9, 2013. By my calculations, the costs total $534 and

       include the following: $125 Clerk’s Filing Fee (705 ILCS 105/27.2 (2012)), $15 Court

       Automation Fee (705 ILCS 105/27.3a (2012)), $25 Court Security Fee (55 ILCS 5/5-1103

       (2012)), $15 Document Storage Fee (705 ILCS 105/27.3c (2012)), $250 DNA database analysis

       fee (730 ILCS 5/5-4-3(j) (2012)), $104 in Sheriff’s Fees (55 ILCS 5/4-5001 (2012)) and 725

       ILCS 5/124A-5 (2012) (extradition costs)).

¶ 28          Therefore, I would remand the case to the circuit clerk with directions to apply the $5

       per diem credit to all eligible fines, leaving a balance of fines that are ineligible for the per diem

       credit in the amount of $210. The total defendant should be required to pay for the remaining

       fines and costs should not exceed $744.




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