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                              Appellate Court                         of this document
                                                                      Date: 2016.11.28
                                                                      14:22:57 -06'00'




                  People v. Montalvo, 2016 IL App (2d) 140905



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



District & No.    Second District
                  Docket No. 2-14-0905



Filed             September 23, 2016



Decision Under    Appeal from the Circuit Court of Winnebago County, Nos.
Review            08-CF-4518, 11-CF-2688; the Hon. John R. Truitt, Judge, presiding.



Judgment          Affirmed as modified.



Counsel on        Michael J. Pelletier and Thomas A. Lilien, both of State Appellate
Appeal            Defender’s Office, of Elgin, for appellant.

                  Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M.
                  Bauer and Sally A. Swiss, both of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                  Justices Burke and Birkett concurred in the judgment and opinion.
                                                 OPINION

¶1         Defendant, Joshua A. Montalvo, appeals from the judgment of the circuit court of
       Winnebago County, contending that the trial court should have awarded him 39 days of
       sentence credit for his participation as a pretrial detainee in an anger management program.
       Because defendant was entitled to six days’ credit, we modify the mittimus and otherwise
       affirm the judgment.

¶2                                           I. BACKGROUND
¶3         Defendant was charged with one count of burglary (720 ILCS 5/19-1(a) (West 2008)) and
       one count of retail theft (720 ILCS 5/16A-3(a) (West 2008)) (No. 08-CF-4518). Defendant
       pled guilty to burglary and was placed on probation. While on probation he was charged with
       one count of aggravated robbery (720 ILCS 5/18-5(a) (West 2010)) and one count of robbery
       (720 ILCS 5/18-1(a) (West 2010)) (No. 11-CF-2688).
¶4         On May 13, 2013, defendant pled guilty in No. 11-CF-2688 to aggravated robbery and
       admitted in No. 08-CF-4518 to violating his probation. The trial court sentenced defendant to
       concurrent seven-year terms of imprisonment, with credit for time served of 571 days in No.
       08-CF-4518 and 444 days in No. 11-CF-2688. The court ruled that any sentence credit for
       defendant’s participation in any programs while a pretrial detainee was to be determined by the
       Department of Corrections (DOC). Defendant did not appeal.
¶5         On February 3, 2014, defendant requested that the trial court correct the mittimus in both
       cases to reflect sentence credit for an anger management program that he completed while a
       pretrial detainee. In support of that motion, defendant submitted a letter signed by Linda
       Limberg, the jail programs supervisor, which stated that defendant had successfully completed
       an anger management program. According to Limberg’s letter, the program required
       attendance one day per week for two hours and ran from “July 24, 2012 [sic] *** through
       October 29, 2013.”
¶6         The trial court entered a new judgment, nunc pro tunc to May 13, 2013. The new judgment
       referred to an attached certificate showing that defendant had completed an anger management
       program that “reflect[ed] 24 hours completed (12 sessions at 2 hours each) to be considered for
       possible good time credit per [DOC] policy.”
¶7         In March 2014, defendant filed a pro se motion, seeking that credit for time served of 571
       days be applied to his sentence in No. 11-CF-2688. The trial court denied the motion.
¶8         On August 19, 2014, defendant, through his attorney, filed a motion to amend the mittimus
       in both cases. The motion sought 571 days’ credit in No. 11-CF-2688 and 36 days’ credit in
       both cases for completion of the anger management program.
¶9         The trial court denied the motion as to the 571 days of credit. However, the court ordered
       that supporting documents be sent to the DOC to determine whether credit for completion of
       the anger management program should be granted. Defendant filed a timely appeal in both
       cases.
¶ 10       While this appeal was pending, defendant filed an “emergency” motion, in which he
       requested that this court remand the matter to the trial court with directions that it calculate the
       credit to which he is entitled for completion of the anger management program and issue


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       another amended mittimus reflecting such credit. After briefing, we denied the motion.

¶ 11                                           II. ANALYSIS
¶ 12        On appeal, defendant contends that (1) the trial court erred by failing to determine itself
       whether he was eligible for sentence credit for the anger management program and, if so, how
       many days’ credit he should receive and (2) because the program ran for 78 calendar days, he is
       entitled to a half-day’s credit per day for a total of 39 days’ credit.
¶ 13        The State responds that (1) this appeal is moot because defendant has completed his term of
       imprisonment and (2) although the anger management program qualifies defendant for
       sentence credit, he is entitled to only 4 days, because he completed the 15-hour minimum
       attendance requirement by attending a 2-hour session on 8 separate days.
¶ 14        We begin with the issue of whether this appeal is moot. It is not. An appeal becomes moot
       when an occurrence of events since the filing of the appeal makes it impossible for the
       reviewing court to provide effective relief. People v. Jackson, 199 Ill. 2d 286, 294 (2002).
       Where a defendant has been released from prison but remains on mandatory supervised release
       (MSR), a reduction in his prison sentence would affect how long he could be reincarcerated for
       a violation of his MSR. Jackson, 199 Ill. 2d at 294 (citing 730 ILCS 5/3-3-9(a)(3)(i)(B) (West
       1996)). Accordingly, a challenge to the length of a prison term is not moot if it is brought
       before the defendant has completed his MSR. People v. Elizalde, 344 Ill. App. 3d 678, 681
       (2003), overruled in part on other grounds, People v. Graves, 235 Ill. 2d 244, 254-55 (2009).
¶ 15        In this case, defendant, although he has completed his term of imprisonment, has not yet
       completed his MSR. Therefore, should he violate his MSR and be reincarcerated, any sentence
       credit would reduce the length of his imprisonment.1 Thus, defendant’s appeal is not moot.
¶ 16        The State’s reliance on People v. Whitfield, 217 Ill. 2d 177 (2005), is misplaced. The
       supreme court held in Whitfield that, although MSR is part of a defendant’s sentence, a court
       has no authority to alter a statutorily mandated term of MSR. Whitfield, 217 Ill. 2d at 202.
       Here, defendant does not seek to have his MSR shortened. Rather, he seeks credit to be applied
       to any term of imprisonment that may result from a violation of his MSR. Thus, Whitfield does
       not apply.
¶ 17        We turn to the merits of defendant’s appeal. When we interpret a statute, the primary goal
       is to ascertain and give effect to the legislative intent. People v. Giraud, 2012 IL 113116, ¶ 6.
       The surest and most reliable indicator of that intent is the statutory language itself, given its
       plain and ordinary meaning. Giraud, 2012 IL 113116, ¶ 6. In determining the plain meaning of
       statutory language, we consider the statute in its entirety, keeping in mind the subject it
       addresses and the apparent intent of the legislature in enacting it. Giraud, 2012 IL 113116, ¶ 6.
       If the statutory language is clear and unambiguous, we must apply it as written, without resort
       to extrinsic aids of statutory construction. Giraud, 2012 IL 113116, ¶ 6. A question of statutory
       interpretation is subject to de novo review. Giraud, 2012 IL 113116, ¶ 6.
¶ 18        Because the Illinois Administrative Code has the force and effect of law, the rules of
       statutory construction apply to interpreting its provisions. Ress v. Office of the State

           1
            Defendant asserts in his reply brief that he “has actually been returned to custody in the [DOC] as
       a possible violator of the conditions of MSR.” Our conclusion that this appeal is not moot, however,
       does not depend on whether defendant has actually violated his MSR.

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       Comptroller, 329 Ill. App. 3d 136, 142 (2002). Accordingly, the primary aim is to give effect
       to the drafters’ intent. Ress, 329 Ill. App. 3d at 142. The best indicator of that intent is the
       language of the provision, which is given its plain and ordinary meaning. Ress, 329 Ill. App. 3d
       at 142. An interpretation of the Administrative Code is reviewed de novo. People ex rel.
       Madigan v. Petco Petroleum Corp., 363 Ill. App. 3d 613, 628 (2006).
¶ 19        We begin our analysis with section 3-6-3(a)(4) of the Unified Code of Corrections (Code
       of Corrections) (730 ILCS 5/3-6-3(a)(4) (West 2012)), which provides, in pertinent part, that a
       pretrial detainee may earn sentence credit for program “participation” if, among other options,
       he completes a “full-time *** behavior modification program *** provided by the county
       department of corrections or county jail.” Calculation of the program credit “shall be done at
       sentencing” and shall be included in the sentencing order. 730 ILCS 5/3-6-3(a)(4) (West
       2012); see also 20 Ill. Adm. Code 107.17 (2013). The trial court shall give a defendant credit
       for successfully completing such programming before the imposition of sentence at the rate
       specified in section 3-6-3. See 730 ILCS 5/5-4.5-100(c-5) (West 2012). Such credit is to be
       one-half day for each day of eligibility. See 730 ILCS 5/3-6-3(a)(4) (West 2012).
¶ 20        We first address the question of whether the trial court erred in failing to determine whether
       defendant was eligible for sentence credit and, if so, how much. Both parties contend that the
       trial court erred in not doing so. We agree. The calculation of such credit was to be done at
       sentencing and included in the sentencing order. See 730 ILCS 5/3-6-3(a)(4) (West 2012).
       Further, the trial court was required to give defendant credit for his successful completion of
       the anger management program at the rate specified in section 3-6-3. See 730 ILCS
       5/5-4.5-100(c-5) (West 2012). We read those two provisions together as placing the obligation
       on the trial court to determine whether defendant was eligible for sentence credit and, if so,
       how much. We need not remand for the trial court to make those determinations, however, as
       we are authorized to do so and amend the judgment accordingly. See Ill. S. Ct. R. 366(a) (eff.
       Feb. 1, 1994).
¶ 21        We next address the question of whether the anger management program constituted a
       full-time program within the meaning of section 3-6-3(a)(4) of the Code of Corrections.
       Although the Code of Corrections does not define a “full-time” program, section
       107.520(d)(4) of the Administrative Code states that “[f]ull-time assignment to a program for
       which an offender may be eligible to receive program sentence credit shall mean: ***
       enroll[ment] in a behavior modification program for which a minimum of 15 hours of
       participation is required for completion.” 20 Ill. Adm. Code 107.520(d)(4) (2013).
¶ 22        There is no dispute that completion of the anger management program in this case required
       defendant to participate by attending 12 two-hour sessions. The 24 hours of required
       participation exceeded the required minimum of 15 hours. Thus the program, which defendant
       successfully completed, was full-time for purposes of section 3-6-3(a)(4).
¶ 23        That leaves the question of the amount of sentence credit for which defendant was eligible.
       In answering that question, we look to the relevant provisions of the Code of Corrections and
       the Administrative Code. Section 3-6-3(a)(4) of the Code of Corrections provides, in pertinent
       part, that a defendant is eligible for sentence credit for his “participation” in a program. 730
       ILCS 5/3-6-3(a)(4) (West 2012). Further, section 107.520(d)(4) of the Administrative Code
       requires at least 15 hours of “participation” for an offender to receive sentence credit. 20 Ill.
       Adm. Code 107.520(d)(4) (2013). Clearly, the drafters intended that a pretrial detainee receive
       credit only for his participation in a qualified program.

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¶ 24       We must next decide what the drafters meant by participation. As noted, we are to give
       statutory language its plain and ordinary meaning. See Giraud, 2012 IL 113116, ¶ 6. The plain
       and ordinary meaning of “participate” is to actively partake. See Webster’s Third New
       International Dictionary 1646 (1993). In other words, to get sentence credit, an offender must
       actively partake in the particular program on each day for which he seeks credit. This
       interpretation is consistent with the legislative intent to give sentence credit to encourage
       offenders to participate in rehabilitative programs such as the one at issue here. See Guzzo v.
       Snyder, 326 Ill. App. 3d 1058, 1063 (2001) (award of good-conduct credit is to acknowledge
       and encourage meritorious inmate service).
¶ 25       Here, defendant actively partook in the program by attending sessions on 12 days.
       Therefore, he participated on 12 days. Thus, he is entitled to a half-day’s credit for each of
       those days.
¶ 26       Although defendant contends that he is entitled to 39 days’ credit, because the program
       spanned 78 calendar days, we disagree. As noted, it was defendant’s participation on a
       particular day that determined whether he was eligible for credit for that day. There is nothing
       in the record to show that defendant was required to participate in any way other than by
       attending. Giving defendant credit for those days on which he did not attend would be
       inconsistent with the meaning of participation and the intent of section 3-6-3(a)(4). Thus, only
       those days on which defendant actually attended could be counted toward his credit.
¶ 27       The State, although agreeing that defendant should receive credit for only those days on
       which he attended, contends that his credit should be capped at eight days, as that is what it
       took for him to satisfy the minimum 15 hours of required participation. That approach,
       however, ignores the plain language of section 3-6-3(a)(4), which permits an offender to
       receive credit for each day he participates. It is also inconsistent with the legislative intent to
       encourage participation in such programs by rewarding an offender with credit for his
       participation. Because the particular program at issue in this case required defendant to
       participate by attending on 12 days, defendant is entitled to receive credit for each of those
       days.

¶ 28                                        III. CONCLUSION
¶ 29       For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
       However, pursuant to Illinois Supreme Court Rule 366(a) (eff. Feb. 1, 1994), we modify the
       mittimus in both cases to reflect six additional days of sentence credit.

¶ 30      Affirmed as modified.




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