                               Illinois Official Reports

                                      Appellate Court



                          People v. Clark, 2014 IL App (4th) 130331



Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  STEFFON L. CLARK, Defendant-Appellant.



District & No.           Fourth District
                         Docket Nos. 4-13-0331, 4-13-0332, 4-13-0333, 4-13-0334 cons.



Filed                    August 7, 2014
Rehearing denied         September 8, 2014


Held                       In an appeal from the summary dismissal of defendant’s joint pro se
(Note: This syllabus postconviction petition involving four criminal cases where
constitutes no part of the defendant’s only argument on appeal was that he was entitled to three
opinion of the court but days of sentencing credit, the appellate court upheld the dismissal on
has been prepared by the the ground that under the evidence and the applicable statutes,
Reporter of Decisions defendant was not entitled to any of the sentencing credit he sought.
for the convenience of
the reader.)




Decision Under           Appeal from the Circuit Court of Macon County, Nos. 11-CF-399,
Review                   11-CF-681, 11-CF-1453, 12-CF-11; the Hon Timothy J. Steadman,
                         Judge, presiding.




Judgment                 Affirmed.
     Counsel on               Michael J. Pelletier, Jacqueline L. Bullard, and John M. McCarthy, all
     Appeal                   of State Appellate Defender’s Office, of Springfield, for appellant.

                              Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.
                              Robinson, and Allison Paige Brooks, all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.



     Panel                    JUSTICE TURNER delivered the judgment of the court, with opinion.
                              Justices Pope and Harris concurred in the judgment and opinion.


                                               OPINION

¶1         In March 2013, defendant, Steffon L. Clark, filed a joint pro se postconviction petition in
       his following four Macon County criminal cases: No. 11-CF-399 (hereinafter, case 399),
       No. 11-CF-681 (hereinafter, case 681), No. 11-CF-1453 (hereinafter, case 1453), and
       No. 12-CF-11 (hereinafter, case 11). That same month, the Macon County circuit court
       dismissed defendant’s postconviction petition at the first stage of the proceedings. Defendant
       appealed the dismissal, but on appeal, he only contends he is entitled to extra days of
       sentencing credit. We affirm.

¶2                                         I. BACKGROUND
¶3                                 A. Case 399 (Appeal No. 4-13-0331)
           In March 2011, the State charged defendant by information with one count of aggravated
       driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(A) (West 2010)) and
       one count of driving while his license was revoked (625 ILCS 5/6-303(a) (West 2010) (text of
       section effective until July 1, 2011)) for his actions on March 12, 2011. On March 12, 2011,
       defendant was released after posting bond. On March 7, 2012, the trial court held a plea
       hearing on all four cases included in this appeal, another Macon County criminal case
       (No. 11-CF-1148 (hereinafter, case 1148)), and two petitions to revoke probation in Macon
       County case Nos. 09-CF-1798 and 10-CF-316. The State and defendant entered into a
       negotiated plea agreement involving all seven cases, which included four consecutive prison
       terms and the dismissal of several criminal charges and the petitions to revoke probation. As to
       case 399, defendant pleaded guilty to the DUI count with an agreed sentence of five years’
       imprisonment, and the court dismissed the driving-while-license-revoked charge on the State’s
       motion. On March 23, 2012, the court held a sentencing hearing and sentenced defendant to
       five years’ imprisonment on the DUI count. The court gave defendant a sentence credit for
       March 12, 2011, the date of his arrest, and for March 21-22, 2012.

¶4                              B. Case 681 (Appeal No. 4-13-0332)
¶5        In May 2011, the State charged defendant by information with one count of unlawful
       possession of cannabis with the intent to deliver (720 ILCS 550/5(d) (West 2010)) and one


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       count of unlawful possession of cannabis with a prior unlawful-possession-of-cannabis
       conviction (720 ILCS 550/4(d) (West 2010)) for his actions on May 4, 2011. The record
       indicates that, on May 4, 2011, defendant was released after his arrest on his own recognizance
       with a notice to appear. In this case on March 7, 2012, defendant pleaded guilty to unlawful
       possession of cannabis with the intent to deliver with an agreed sentence of two years’
       imprisonment, and the court dismissed the other count on the State’s motion. On March 23,
       2012, the court held a sentencing hearing and sentenced defendant to two years’ imprisonment
       on the unlawful-possession-of-cannabis-with-the-intent-to-deliver count to run consecutive to
       the sentence in case 399. The court did not give defendant any sentence credit for this case.

¶6                                             C. Case 1148
¶7          In August 2011, the State charged defendant by information with one count of driving
       while license revoked or suspended with a prior conviction for driving while license revoked
       or suspended (625 ILCS 5/6-303(a), (d) (West 2010) (text of section effective July 1, 2011))
       for his actions on August 14, 2011. The police arrested defendant on August 14, 2011, and
       after posting bond, he was released on August 15, 2011. At the March 23, 2012, hearing, the
       trial court dismissed the charge in this case pursuant to the plea agreement.

¶8                                D. Case 1453 (Appeal No. 4-13-0334)
¶9         In October 2011, the State charged defendant by information with one count of driving
       while his license was revoked or suspended with a prior conviction for driving while his
       license was revoked or suspended (625 ILCS 5/6-303(a), (d) (West 2010) (text of section
       effective July 1, 2011)) for his actions on October 9, 2011. After his arrest, he was released on
       bond. In this case on March 7, 2012, defendant pleaded guilty to unlawful possession of
       cannabis with the intent to deliver with an agreed sentence of three years’ imprisonment, and
       the court dismissed the other count on the State’s motion. On March 23, 2012, the court held a
       sentencing hearing and sentenced defendant to three years’ imprisonment to run consecutive to
       the sentences in cases 399 and 681. The court gave defendant one day of sentence credit
       (October 9, 2011) in this case.

¶ 10                                   E. Case 11 (No. 4-13-0333)
¶ 11       In January 2012, the State charged defendant by information with one count of attempt
       (home invasion) (720 ILCS 5/8-4(a) (West 2010); 720 ILCS 5/12-11(a)(2) (West 2010) (text
       of section effective July 1, 2011)) and one count of residential burglary (720 ILCS 5/19-3(a)
       (West 2010)) for his actions on December 6, 2011. In March 2012, the State further charged
       defendant by information with criminal trespass to a residence (720 ILCS 5/19-4(a)(2) (West
       2010)) for his actions on December 6, 2011. The police arrested defendant on December 6,
       2011, and he was released on bail on December 7, 2011. In this case on March 7, 2012,
       defendant pleaded guilty to criminal trespass to a residence with an agreed sentence of two
       years’ imprisonment, and the court dismissed the other counts on the State’s motion. On March
       23, 2012, the court held a sentencing hearing and sentenced defendant to two years’
       imprisonment for criminal trespass to a residence to run consecutive to his sentences in cases
       399, 681, and 1453. In this case, the court gave defendant two days of sentencing credit
       (December 6 and 7, 2011).


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¶ 12                                    F. Postconviction Petition
¶ 13       On March 8, 2013, defendant filed a joint pro se postconviction petition in cases 399, 681,
       1153, and 11, asserting ineffective assistance of counsel and other violations of his
       constitutional rights. On March 20, 2013, the trial court dismissed defendant’s postconviction
       petition as frivolous or patently without merit. On April 19, 2013, defendant filed a timely
       pro se notice of appeal from the denial of his postconviction petition in sufficient compliance
       with Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013). If the notice of appeal is, in fact,
       insufficient under Rule 606, then defendant filed on July 25, 2013, a timely request to file a late
       notice of appeal, which we granted. In August 2013, defendant filed said late notice of appeal.
       Accordingly, this court has jurisdiction of the trial court’s denial of defendant’s postconviction
       petition under Illinois Supreme Court Rule 651(d) (eff. Feb. 6, 2013). Additionally, we note
       that, on May 5, 2014, this court granted defendant’s motion to consolidate the four appeals.

¶ 14                                         II. ANALYSIS
¶ 15       While defendant appeals the dismissal of his postconviction petition in the four cases, he
       only argues on appeal that he is entitled to one day of sentencing credit in case 681 under
       section 5-4.5-100(b) of the Unified Code of Corrections (Unified Code) (730 ILCS
       5/5-4.5-100(b) (West 2010)) and two days of credit for his time served in dismissed case 1148
       under section 5-4.5-100(c) of the Unified Code (730 ILCS 5/5-4.5-100(c) (West 2010)).
       Generally, a defendant cannot raise an issue for the first time on appeal from the dismissal of a
       postconviction petition. People v. Jones, 211 Ill. 2d 140, 148, 809 N.E.2d 1233, 1239 (2004).
       However, a sentence in conflict with a statutory guideline is void and may be challenged at any
       time. People v. Roberson, 212 Ill. 2d 430, 440, 819 N.E.2d 761, 767 (2004). Accordingly, we
       will address the merits of defendant’s request for additional sentencing credit, to which the
       State contends he is not entitled. A reviewing court reviews whether a defendant should
       receive presentence custody credit against his sentence under the de novo standard of review.
       People v. Johnson, 401 Ill. App. 3d 678, 680, 937 N.E.2d 190, 192 (2010).

¶ 16                                            A. Case 681
¶ 17       With case 681, defendant requests one day of sentencing credit for the day of his arrest.
       Section 5-4.5-100(b) of the Unified Code (730 ILCS 5/5-4.5-100(b) (West 2010) (formerly
       730 ILCS 5/5-8-7(b)) addresses sentencing credit for the same offense and provides, in
       pertinent part, the following: “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.” We note the exceptions to section
       5-4.5-100(b) do not apply to the facts of this case. This court has further explained “[a]
       defendant should receive credit against his sentence for any part of a day that he is held in
       custody.” People v. Peterson, 372 Ill. App. 3d 1010, 1019, 868 N.E.2d 329, 336 (2007).
       Defendant asserts he was “in custody” for the purposes of section 5-4.5-100(b) when he was
       arrested for this offense. However, as the State notes, defendant provides no argument and
       cites no legal authority in support of that contention in his initial brief. In his reply brief,
       defendant only addresses the case cited by the State and provides an Internet dictionary
       definition of “arrest.” As this court has stated, “[A] reviewing court is entitled to have the


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       issues clearly defined with pertinent authority cited and is not simply a depository in which the
       appealing party may dump the burden of argument and research.” (Internal quotation marks
       omitted.) People v. Ramirez, 2013 IL App (4th) 121153, ¶ 74, 996 N.E.2d 1227 (quoting
       In re Marriage of Baumgartner, 237 Ill. 2d 468, 474-75, 930 N.E.2d 1024, 1027 (2010)). The
       issue defendant raises is not a simple one as our supreme court has found the term “in custody”
       in the context of the crediting statute ambiguous. People v. Beachem, 229 Ill. 2d 237, 246, 890
       N.E.2d 515, 520 (2008). Defendant needed to provide this court with legal authority and
       argument supporting his position. Since he failed to do so, we find defendant has forfeited his
       argument on this appeal. See Ramirez, 2013 IL App (4th) 121153, ¶ 74, 996 N.E.2d 1227.

¶ 18                                             B. Case 1148
¶ 19       Defendant further contends he is entitled to sentencing credit against his sentence in either
       case 399 or case 681 for the two days he spent in jail in case 1148, which was dismissed as part
       of the plea agreement. In support of his argument, defendant cites our decision in People v.
       Cook, 392 Ill. App. 3d 147, 151, 910 N.E.2d 208, 211 (2009), where we found the defendant
       was entitled to receive sentencing credit in two cases under section 5-8-7(c) of the Unified
       Code (730 ILCS 5/5-8-7(c) (West 2006)) for the time the defendant had spent in custody on a
       dismissed charge. Justice Pope dissented in the Cook decision, concluding section 5-8-7(c) did
       not apply in that case because the defendant was seeking credit for a subsequent charge, not a
       former one. Cook, 392 Ill. App. 3d at 152, 910 N.E.2d at 211 (Pope, J., dissenting). The State
       asserts we should apply Justice Pope’s analysis in her dissent in Cook and deny defendant the
       two days of sentencing credit. We agree with the State.
¶ 20       Section 5-4.5-100(c) of the Unified Code (730 ILCS 5/5-4.5-100(c) (West 2010)) provides
       the following:
                    “(c) CREDIT; TIME IN CUSTODY; FORMER CHARGE. An offender arrested
                on one charge and prosecuted on another charge for conduct that occurred prior to his
                or her arrest shall be given credit on the determinate sentence or maximum term and the
                minimum term of imprisonment for time spent in custody under the former charge not
                credited against another sentence.”
       While the Cook case involved the former crediting statute (730 ILCS 5/5-8-7(c) (West 2006)),
       the language of section 5-4.5-100(c) is the same as the version of section 5-8-7(c) analyzed in
       Cook. See Cook, 392 Ill. App. 3d at 150, 910 N.E.2d at 210. Thus, we agree with the parties the
       Cook decision is pertinent to the disposition of this case.
¶ 21       In Cook, 392 Ill. App. 3d at 148, 910 N.E.2d at 209, the defendant entered into a plea
       agreement with the State involving three pending cases. The first case was case No.
       07-CF-1997, in which the State charged defendant on November 16, 2007, with theft for the
       defendant’s actions on November 2, 2007. Cook, 392 Ill. App. 3d at 148, 910 N.E.2d at 209. In
       case No. 07-CF-2145, on December 10, 2007, the State charged the defendant with unlawful
       possession of less than 15 grams of cocaine. Cook, 392 Ill. App. 3d at 148, 910 N.E.2d at 209.
       On January 18, 2008, in case No. 08-CF-120, the State charged the defendant with aggravated
       criminal sexual abuse for his actions on August 31, 2007. Cook, 392 Ill. App. 3d at 148, 910
       N.E.2d at 209. The Cook court found section 5-8-7(c) applicable because the defendant (1) was
       arrested for aggravated criminal sexual abuse in case No. 08-CF-120; (2) was prosecuted for
       theft in case No. 07-CF-1997, which involved conduct that occurred prior to defendant’s arrest


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       in case No. 08-CF-120; and (3) did not receive credit for the time he spent in custody in case
       No. 08-CF-120 against another sentence. Cook, 392 Ill. App. 3d at 151, 910 N.E.2d at 210.
¶ 22       Moreover, the Cook court noted the facts of the case before it were similar to those in
       People v. Revell, 372 Ill. App. 3d 981, 993, 868 N.E.2d 318, 328 (2007), where this court had
       awarded the defendant sentencing credit under section 5-8-7(c) for the time defendant spent in
       custody on an unrelated, dismissed charge. Cook, 392 Ill. App. 3d at 150, 910 N.E.2d at 210.
       There, the defendant had been (1) arrested and charged with aggravated criminal sexual abuse;
       (2) prosecuted in another case for predatory criminal sexual assault, which involved conduct
       that occurred prior to the defendant’s arrest in the aggravated-criminal-sexual-abuse case; and
       (3) had not received credit for the time he had spent in custody in the first case (aggravated
       criminal sexual abuse). Cook, 392 Ill. App. 3d at 150, 910 N.E.2d at 210 (citing Revell, 372 Ill.
       App. 3d at 993, 868 N.E.2d at 328). Moreover, the Revell court noted “ ‘[a]lthough 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.’ ” Cook, 392 Ill. App. 3d at 150, 910 N.E.2d at 210
       (quoting Revell, 372 Ill. App. 3d at 993, 868 N.E.2d at 328).
¶ 23       On the other hand, Justice Pope found section 5-8-7(c) inapplicable. She explained section
       5-8-7(c)’s language, “ ‘[a]n offender arrested on one charge,’ ” referred to the defendant’s theft
       and possession charges because those arrests occurred first in time. Cook, 392 Ill. App. 3d at
       151, 910 N.E.2d at 211 (Pope, J., dissenting) (quoting 730 ILCS 5/5-8-7(c) (West 2006)).
       Further, the “ ‘and prosecuted on another charge’ ” language referred to the
       criminal-sexual-abuse charge as it was filed subsequent to the original charges. Cook, 392 Ill.
       App. 3d at 151-52, 910 N.E.2d at 211 (Pope, J., dissenting) (quoting 730 ILCS 5/5-8-7(c)
       (West 2006)). “The statute then provides for credit against the sentence imposed in the
       subsequent charge (in our case, the criminal-sexual-abuse charge) for time spent in custody on
       the original charges (in our case, the theft and possession charges) that has not been credited
       against another sentence, so long as the conduct in the subsequent charge occurred prior to the
       arrest on the first charge(s).” Cook, 392 Ill. App. 3d at 152, 910 N.E.2d at 211 (Pope, J.,
       dissenting). Thus, in Cook, since the subsequent charge (the criminal-sexual-abuse charge)
       was dismissed and defendant was prosecuted on the original charges (the theft and possession
       charges), section 5-8-7(c) did not apply. Cook, 392 Ill. App. 3d at 152, 910 N.E.2d at 211
       (Pope, J., dissenting). Justice Pope further noted her interpretation of the statute is supported
       by the Council Commentary, which states the following: “ ‘[s]ubparagraph (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 which results in
       conviction and imprisonment.’ ” Cook, 392 Ill. App. 3d at 152, 910 N.E.2d at 211 (Pope, J.,
       dissenting) (quoting 730 ILCS Ann. 5/5-8-7, Council Commentary-1973, at 226 (Smith-Hurd
       2007)). She also (1) pointed out the credit in Revell was for a former charge, not a subsequent
       one; and (2) noted that, in this case, the original charges were not dropped and were totally
       unrelated to the subsequent sex-abuse charge. Cook, 392 Ill. App. 3d at 152, 910 N.E.2d at
       211-12 (Pope, J., dissenting).
¶ 24       We find Justice Pope’s interpretation and application of section 5-8-7(c) is the proper one.
       The title of section 5-4.5-100(c) of the Unified Code (730 ILCS 5/5-4.5-100(c) (West 2010))
       indicates the credit is for custody on a former charge. Moreover, the provision uses the
       following language: “time spent in custody under the former charge not credited against


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       another sentence.” (Emphasis added.) 730 ILCS 5/5-4.5-100(c) (West 2010). The language
       does not allow for a credit for time spent in custody on a subsequent charge that is dismissed.
       Accordingly, we decline to follow the majority’s analysis in Cook.
¶ 25       Under the facts of this case, defendant cannot receive credit for the two days he spent in
       custody on case 1148 in cases 399 and 681 because those charges preceded the charge in case
       1148. He also cannot receive the two days he spent in custody on case 1148 in cases 1453 and
       11 because the conduct in those cases did not occur before his arrest in case 1148. Accordingly,
       defendant is not entitled to any sentence credit for the two days he spent in custody on case
       1148.

¶ 26                                       III. CONCLUSION
¶ 27      For the reasons stated, we affirm the Macon County circuit court’s judgment. As part of our
       judgment, we grant the State’s request that defendant be assessed $50 as costs for this appeal.

¶ 28      Affirmed.




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