                       Illinois Official Reports

                                 Appellate Court



                  People v. Reeves, 2015 IL App (4th) 130707



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           RUSSELL A. REEVES, Defendant-Appellant.




District & No.    Fourth District
                  Docket Nos. 4-13-0707, 4-13-0708 cons.




Filed             June 2, 2015




Decision Under    Appeal from the Circuit Court of Vermilion County, Nos. 07-CF-343,
Review            08-CF-17; the Hon. Michael D. Clary, Judge, presiding.




Judgment          Affirmed.




Counsel on        Michael J. Pelletier, of State Appellate Defender’s Office, of
Appeal            Springfield, and Alan D. Goldberg and Christofer R. Bendik, both of
                  State Appellate Defender’s Office, of Chicago, for appellant.

                  Randall Brinegar, State’s Attorney, of Danville (Patrick Delfino,
                  David J. Robinson, and Timothy J. Londrigan, all of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                   JUSTICE KNECHT delivered the judgment of the court, with
                             opinion.
                             Justices Harris and Steigmann concurred in the judgment and opinion.




                                              OPINION

¶1         On June 24, 2013, defendant, Russell A. Reeves, filed a motion to amend the written
       sentencing judgment for his consecutive sentences in case Nos. 07-CF-343 and 08-CF-17 to
       reflect a specific number of days of credit for simultaneous presentence custody on separate
       charges. Four days later, the trial court summarily dismissed the motion. Defendant filed a
       notice of appeal, and the court appointed the office of the State Appellate Defender (OSAD) to
       represent defendant. On appeal, OSAD moves to withdraw its representation of defendant,
       contending any request for review would be without merit. We grant OSAD’s motion to
       withdraw and affirm the trial court’s judgment.

¶2                                          I. BACKGROUND
¶3         In June 2007, the State charged defendant with six counts of aggravated criminal sexual
       assault in case No. 07-CF-343 for two 1998 incidents involving two different victims. Counts I
       through III alleged defendant committed an act of sexual penetration upon V.W. by the use of
       force or threat of force and caused V.W. bodily harm during the commission of a felony home
       invasion in August 1998. 720 ILCS 5/12-14(a)(2)-(4) (West 1996). Counts IV through VI
       alleged defendant committed an act of sexual penetration upon R.S. by the use of force or
       threat of force and caused R.S. bodily harm during the commission of a felony home invasion
       in May 1998. 720 ILCS 5/12-14(a)(2)-(4) (West 1996). Police arrested defendant and placed
       him in custody on June 4, 2007. Thereafter, the State charged defendant with possession of
       contraband in a penal institution in case No. 08-CF-17 for possessing a weapon on January 9,
       2008, while in custody on the aggravated criminal sexual assault charges in case No.
       07-CF-343.
¶4         In July 2008, defendant proceeded to a bench trial before Judge Nancy S. Fahey on case
       No. 08-CF-17. The trial court found defendant guilty beyond a reasonable doubt of possessing
       contraband in a penal institution. In September 2008, the parties appeared for sentencing on
       defendant’s possession of contraband in a penal institution conviction. The court noted
       defendant was set for trial later in September 2008 on the aggravated criminal sexual assault
       charges in case No. 07-CF-343. The court continued the sentencing hearing on case No.
       08-CF-17 in the hopes of resolving all matters at the same time.
¶5         In October 2008, defendant entered into a partially negotiated plea deal on the aggravated
       criminal sexual assault charges in case No. 07-CF-343. Defendant pleaded guilty to all six
       counts and, in exchange for his plea, the State agreed to a cap of no more than 30 years’
       imprisonment on all counts in case No. 07-CF-343 and case No. 08-CF-17. No one addressed
       sentencing credit at any time during the hearing on the guilty plea.


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¶6       Seven months after accepting the guilty plea, Judge Fahey held a sentencing hearing on all
     charges from case Nos. 08-CF-17 and 07-CF-343. Following evidence in aggravation and
     mitigation, the court found counts I through III and counts IV through VI merged into two
     offenses. The court sentenced defendant as follows:
              “In 07 CF 343, on Count 1, you’ll be sentenced to 12 years in the Illinois Department of
              Corrections. Counts 2, and 3 will merge. You’ll serve 85 percent of that time. That will
              include three years of mandatory supervised release. On Count 4, you’ll be sentenced
              to 12 years in the Illinois Department of Corrections. Counts 5 and 6 will merge into
              that count. On that count, you’ll serve 50 percent of the time, and that will also carry
              three years mandatory supervised release. In 08 CF 17, you’ll be sentenced to five
              years in the Illinois Department of Corrections, plus two years[’] mandatory supervised
              release, and you will serve 50 percent of that time. What credit does Mr. Reeves have?”
     The State advised the trial court judge: “Your Honor, in 07 CF 343, he has 718 days[’] credit.
     The dates are from June 4th, 2007, through today, May 21, 2009. Then in 08 CF 17, he has 499
     days[’] credit. The dates are January 9, 2008, through today’s date, May 21, 2009.” The court
     accepted this credit and informed defendant he would receive 718 days’ credit on case
     No. 07-CF-343 and 499 days’ credit on case No. 08-CF-17. The sentences were to run
     consecutively. The written sentencing judgment provided for “credit in 07CF343 from 6/4/07
     to 5/21/09; 08CF17 from 1/9/08 to 5/21/09. Def[endant] to serve 85% of sentence in [count I]
     07CF343.”
¶7       Defendant appealed case No. 08-CF-17 in June 2009, docketed as case No. 4-09-0406. In
     July 2010, this court granted defendant’s motion to dismiss No. 4-09-0406. In April 2012,
     defendant filed a petition for postconviction relief regarding the alleged failure by the trial
     court to properly admonish defendant prior to accepting the plea in case No. 07-CF-343
     regarding the three-year period of mandatory supervised release attendant to his sentence of
     imprisonment. That petition was summarily dismissed.
¶8       At some point, it came to defendant’s attention the Department of Corrections credited him
     with 718 days of credit on case No. 07-CF-343 and no credit for the 499 days of credit on case
     No. 08-CF-17. Staff at Shawnee Correctional Center declined to credit defendant the 499 days
     on case No. 08-CF-17 because the date range overlapped with the time spent in custody on No.
     07-CF-343. In June 2013, defendant filed a motion to amend the written sentencing judgment
     to reflect the actual number of days of credit in each case, not just the date ranges defendant
     spent in simultaneous presentence custody. A docket entry in the record shows Judge Michael
     D. Clary denied the motion on June 28, 2013, because “[t]he mittimus shows the sentences on
     these cases as imposed by the court.”
¶9       This appeal followed. The appeal of case No. 07-CF-343 was docketed as case No.
     4-13-0707 and the appeal of case No. 08-CF-17 was docketed as case No. 4-13-0708. In
     December 2014, this court allowed defendant’s motion to consolidate the appeals. OSAD was
     appointed and moved to withdraw, filing a brief in support of its motion. On its own motion,
     this court granted defendant until January 15, 2015, to file additional points and authorities.
     Defendant responded pro se, the office of the State’s Attorneys Appellate Prosecutor (SAAP)
     filed a brief, and defendant filed a reply brief. We have considered the record and we conclude,
     as did OSAD and SAAP, no meritorious issues can be raised as to the dismissal of defendant’s
     motion to amend the written sentencing judgment.


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¶ 10                                          II. ANALYSIS
¶ 11       OSAD contends the supreme court’s ruling in People v. Latona, 184 Ill. 2d 260, 703
       N.E.2d 901 (1998), controls and precludes defendant from receiving 499 days’ credit toward
       his sentence in case No. 08-CF-17. In Latona, the supreme court construed section 5-8-4(e)(4)
       of the Unified Code of Corrections (730 ILCS 5/5-8-4(e)(4) (West 1994)). The supreme court
       held, “to the extent that an offender sentenced to consecutive sentences had been incarcerated
       prior thereto on more than one offense simultaneously, he should be given credit only once for
       actual days served.” Latona, 184 Ill. 2d at 271, 703 N.E.2d at 907. OSAD contends defendant
       was simultaneously in custody on the charges in case No. 07-CF-343 during the 499 days
       defendant was in custody after the State charged him in case No. 08-CF-17. Because he was
       already in custody, and because his sentences are to be served consecutively rather than
       concurrently, defendant is not entitled to two days’ credit for each single day he was in
       simultaneous presentence custody.
¶ 12       Defendant argues a person convicted of a crime must be sentenced in accord with the law at
       the time the offense was committed. Defendant argues Latona is inapplicable because he
       committed the two rapes in case No. 07-CF-343 in May and August 1998, and the Latona
       decision came down on November 19, 1998. Defendant argues the law before the Latona
       decision allowed defendants serving consecutive sentences to receive credit more than once
       for each day of presentence custody served. In his motion for an amended sentencing judgment
       before the trial court, defendant argues he was entitled to double credit under People v.
       Robinson, 172 Ill. 2d 452, 667 N.E.2d 1305 (1996) (simultaneous presentence custody credit
       applicable to concurrent sentences for separate offenses). We find this argument unavailing, as
       it ignores the salient point SAAP raises–defendant requests sentencing credit for the
       possession of contraband charge, a crime committed in 2008. By 2008, the law was clearly
       settled under Latona. Defendant’s argument also ignores precedent from this court’s holding in
       Feazell v. Washington, 291 Ill. App. 3d 766, 768, 684 N.E.2d 1052, 1053 (1997) (finding
       Robinson inapplicable to consecutive sentences and holding defendants sentenced to
       consecutive sentences are entitled to only one day of credit for each day of presentence custody
       served).
¶ 13       OSAD further points out defendant does not claim his plea bargain promised the double
       sentencing credit. Some decisions have held a defendant is entitled to double sentencing credit
       when the specified days of credit are included in the terms of the plea agreement. People v.
       McDermott, 2014 IL App (4th) 120655, ¶ 27, 12 N.E.3d 148. See also People v. Clark, 2011 IL
       App (2d) 091116, 956 N.E.2d 1078; People v. Lenoir, 2013 IL App (1st) 113615, 987 N.E.2d
       1015. The record does not show any indication the State and defendant agreed to double credit
       for the 499 days defendant served in simultaneous custody on case Nos. 07-CF-343 and
       08-CF-17. The plea agreement hearing contains no reference to sentence credit, but the parties
       clearly contemplated a separate sentencing hearing. Calculating sentence credit at the plea
       agreement hearing would have been fruitless as there was no determined date for the
       sentencing hearing.
¶ 14       At sentencing, the State began its argument by stating, “Your Honor, it’s my understanding
       that the plea was for a maximum of 30. That maximum being a combination of the two counts
       in the counts on the two victims in the ’07 case [(No. 07-343)], and the contraband case in the
       ’08 case [(No. 08-CF-17)].” The State concluded by saying, “[M]y recommendation is for the
       30 years broken down 12 and 12; 12 for Counts 1 through 3 in the ’07 case, 12 years in Counts

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       4, 5, and 6 in the ’07 case. Lastly, six years in the ’08 case. I do have credits when the [c]ourt
       requests them.” The court ultimately ordered 718 days’ credit in No. 07-CF-343 and 499 days’
       credit in No. 08-CF-17. Even if defendant had raised a benefit-of-the-bargain argument, we
       conclude these statements do not suffice to support defendant’s McDermott claim. The record
       shows only the State and the court mentioned sentence credit–neither defendant nor his
       counsel ever mentioned sentence credit. The record does not “clearly show[ ] the terms of the
       parties’ agreements included specified amounts of sentence credit” or the double sentence
       credit days were “essential, bargained-for terms of defendant’s plea agreements.” (Emphasis
       added.) McDermott, 2014 IL App (4th) 120655, ¶ 30, 12 N.E.3d 148. Moreover, the terms of a
       plea agreement are set at the plea hearing, not at sentencing, and sentence credit was never
       mentioned at the October 2008 plea hearing.
¶ 15       To summarize, the rule in Latona controls in this case, where defendant seeks to apply
       double credit for simultaneous time served in presentence custody to his sentence for a crime
       committed a decade after the Latona decision was filed. Further, Latona did not change
       existing law, as evidenced by this court’s holding in Feazell. Defendant does not, and cannot,
       raise a benefit-of-the-bargain argument where no evidence shows the parties ever agreed to
       specific days of “double credit” for presentence time spent in custody. We agree with OSAD
       and SAAP, i.e., the case presents no meritorious issues for review.

¶ 16                                       III. CONCLUSION
¶ 17      For the reasons stated, we grant OSAD’s motion to withdraw as counsel and affirm the trial
       court’s judgment. As part of our judgment, we award the State its $50 statutory assessment
       against defendant as costs of this appeal.

¶ 18      Affirmed.




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