                                  Illinois Official Reports

                                          Appellate Court



                             People v. Inman, 2014 IL App (5th) 120097




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      THOMAS G. INMAN, Defendant-Appellant.



District & No.               Fifth District
                             Docket No. 5-12-0097


Filed                        February 4, 2014



Held                         Where defendant was convicted of first-degree murder and attempted
(Note: This syllabus         first-degree murder and sentenced to concurrent terms of natural life
constitutes no part of the   for first-degree murder and 30 years for attempted first-degree murder,
opinion of the court but     but the natural-life sentence was vacated 21 years later and on
has been prepared by the     resentencing he was sentenced to 35 years for the first-degree murder
Reporter of Decisions        to be served consecutively to the 30 years imposed for attempted
for the convenience of       first-degree murder, his postconviction petition alleging that the new
the reader.)                 sentence violated the double jeopardy clause was properly dismissed,
                             since both the individual murder sentence and the aggregate term in
                             prison were reduced by the resentencing court and the punishment
                             imposed did not exceed what defendant anticipated when he was
                             originally sentenced.



Decision Under               Appeal from the Circuit Court of St. Clair County, No. 85-CF-181; the
Review                       Hon. Brian Babka, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                 Michael J. Pelletier, Peter A. Carusona, and Thomas A. Karalis, all of
     Appeal                     State Appellate Defender’s Office, of Ottawa, for appellant.

                                Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,
                                Stephen E. Norris, David M. Sanchez, and Whitney E. Atkins, all of
                                State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                                People.



     Panel                      JUSTICE CHAPMAN delivered the judgment of the court, with
                                opinion.
                                Justices Goldenhersh and Wexstten* concurred in the judgment and
                                opinion.


                                                  OPINION

¶1         The defendant, Thomas G. Inman, appeals an order dismissing his petition for
       postconviction relief at the second stage. The defendant was convicted of first-degree murder
       and attempted first-degree murder and sentenced to concurrent prison terms of natural life for
       murder and 30 years for attempted first-degree murder. After his natural-life sentence was
       vacated years later, the defendant was resentenced to 35 years on the murder charge, to be
       served consecutive to the 30-year attempted murder sentence. The defendant filed a
       postconviction petition, alleging that the resentencing court violated principles of double
       jeopardy by ordering his sentences to run consecutively. On appeal from the second-stage
       dismissal of that petition, the defendant argues that (1) the consecutive sentences violate his
       right to due process and (2) consecutive sentences constitute double jeopardy. We affirm.
¶2         The charges at issue in this appeal stem from an argument in a bar that escalated to a violent
       confrontation. The defendant and two friends waited outside the bar for two other men to leave.
       They then followed the other men in their car and ran the car off the road at the next exit. In the
       ensuing fight, one man was stabbed to death. The other was stabbed multiple times and
       suffered serious injuries, but survived. The defendant was arrested in March 1985 and
       subsequently convicted on one count of murder and one count of attempted murder. In August
       1985, the trial court found that the murder was committed in an exceptionally brutal and
       heinous manner. Based on this finding, the court sentenced the defendant to natural life in
       prison for the murder conviction. The court sentenced the defendant to 30 years for the
       attempted murder conviction, to be served concurrently with the sentence for murder.


           *Justice Wexstten fully participated in the decision prior to his retirement. See Cirro Wrecking Co.
       v. Roppolo, 153 Ill. 2d 6, 605 N.E.2d 544 (1992).
                                                      -2-
¶3       In August 2000, the defendant filed a petition for relief from judgment pursuant to section
     2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)), which the court
     treated as a postconviction petition. He alleged that his natural-life sentence violated the rule
     annunciated in Apprendi v. New Jersey, 530 U.S. 466 (2000). He argued that the sentencing
     court imposed this extended-term sentence relying on a finding which, under Apprendi, had to
     be made beyond a reasonable doubt by the trier of fact. Specifically, the sentencing court found
     that the murder was committed in an exceptionally brutal and heinous manner (Ill. Rev. Stat.
     1985, ch. 38, ¶ 1005-8-1(a)(1)).
¶4       In June 2001, the court granted the defendant’s petition and vacated his natural-life
     sentence for murder. 1 The court directed the State to choose between two options. The State
     could again seek a natural-life sentence, which would require the State to retry the defendant
     and prove to a jury beyond a reasonable doubt that the murder was committed in an
     exceptionally brutal and heinous manner. Alternatively, the State could choose not to seek an
     extended-term sentence, in which case the court would hold only a new sentencing hearing.
     The State chose the latter option.
¶5       Most of the proceedings that followed involved the question of whether the trial court
     could impose consecutive sentences. The court ultimately determined that (1) under the
     sentencing law in effect in 1985, it had the discretion to impose consecutive sentences, and (2)
     consecutive sentences would not run afoul of the constitutional protection against double
     jeopardy.
¶6       The matter came for a resentencing hearing in July 2006. The defendant chose to be
     sentenced under the law in effect in 1985, when the murder was committed. See People v.
     Strebin, 209 Ill. App. 3d 1078, 1081, 568 N.E.2d 420, 422 (1991). The parties presented
     evidence in aggravation and mitigation. Much of the evidence in mitigation concerned the
     defendant’s rehabilitative efforts during the 21 years he had already served in prison. Much of
     the evidence in aggravation focused on the defendant’s extensive prior criminal record and the
     nature of the offense. The court found that consecutive sentences were appropriate for two
     reasons: (1) the defendant committed a Class X or Class 1 felony and inflicted serious bodily
     injuries (Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-4(a)), and (2) consecutive sentences were
     necessary to protect the public (Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-4(b)). The court sentenced
     the defendant to 35 years in prison, to be served consecutive to his sentence for attempted
     murder. The sentencing order provided that the defendant was to be given credit for time
     served.
¶7       The defendant appealed that sentence, arguing that the resentencing court abused its
     discretion by imposing consecutive sentences. He did not raise the constitutional issues
     involved in this appeal. This court affirmed the sentence. People v. Inman, 375 Ill. App. 3d
     1161, 945 N.E.2d 703 (2007) (unpublished order under Supreme Court Rule 23).
¶8       The defendant next filed a pro se petition under the Post-Conviction Hearing Act (725
     ILCS 5/122-1 to 122-8 (West 2008)). In relevant part, he alleged that consecutive sentences

        1
          We note that the Illinois Supreme Court subsequently held that Apprendi does not apply
     retroactively. People v. De La Paz, 204 Ill. 2d 426, 437, 791 N.E.2d 489, 496 (2003).
                                                 -3-
       violated the double jeopardy clause and that appellate counsel was ineffective for failing to
       raise this issue on direct appeal. The postconviction court dismissed the defendant’s petition
       summarily, finding it to be a successive petition filed without leave of the court. On appeal
       from that ruling, this court found that the petition at issue was the first petition to challenge the
       2006 sentencing order. We thus concluded that it was not a “successive” petition and the
       defendant, therefore, “did not require leave of the court to file it.” People v. Inman, 407 Ill.
       App. 3d 1156, 1162, 947 N.E.2d 319, 324-25 (2011). We reversed the court’s order dismissing
       the defendant’s petition and directed the court to docket the matter for second-stage
       proceedings. Inman, 407 Ill. App. 3d at 1163, 947 N.E.2d at 325.
¶9         On remand, counsel was appointed to represent the defendant. Counsel filed an amended
       petition on behalf of the defendant, which also alleged that consecutive sentences violated the
       constitutional protection against double jeopardy. The amended petition further alleged that
       both appellate counsel and counsel at the resentencing hearing were ineffective. The State filed
       a motion to dismiss the defendant’s petition. The postconviction court found that there was no
       double jeopardy violation. In support of this conclusion, the court noted that (1) the
       resentencing court had the statutory authority to impose consecutive sentences and (2) the
       length of the murder sentence was reduced, not increased. The court therefore granted the
       State’s motion to dismiss. This appeal followed.
¶ 10       In this appeal, the defendant raises two issues. He first argues that the consecutive
       sentences violate principles of due process under North Carolina v. Pearce, 395 U.S. 711
       (1969). He next argues that consecutive sentences violate the double jeopardy clause. Before
       considering the merits of these arguments, we must address the State’s contention that the
       defendant has forfeited both of these arguments.
¶ 11       The State argues that the defendant has forfeited his arguments for two reasons. First, the
       State contends that both arguments are forfeited because the defendant could have raised them
       in his direct appeal, but did not do so. We note, however, that the defendant has alleged
       ineffective assistance of counsel on direct appeal. The State further contends that the defendant
       forfeited his due process argument because he did not raise it in his amended postconviction
       petition. We note that forfeiture is a limitation on the parties, not the courts. People v. Haissig,
       2012 IL App (2d) 110726, ¶ 20, 976 N.E.2d 1121 (citing People v. Carter, 208 Ill. 2d 309,
       318-19, 802 N.E.2d 1185, 1190 (2003)). We further note that the arguments are closely
       connected. We will therefore consider both of the defendant’s arguments on their merits.
¶ 12       This case was dismissed at the second stage of postconviction proceedings. Our review is
       therefore de novo. People v. Clark, 2011 IL App (2d) 100188, ¶ 17, 957 N.E.2d 162 (citing
       People v. Simpson, 204 Ill. 2d 536, 547, 792 N.E.2d 265, 274-75 (2001)).
¶ 13       The defendant first argues that principles of due process precluded the court from imposing
       consecutive sentences on remand. The relevant principles were discussed by the United States
       Supreme Court in North Carolina v. Pearce. There, the Court explained that “it would be a
       flagrant violation” of a defendant’s right to due process if a sentencing court were to impose a
       harsher sentence after remand from a successful appeal “for the explicit purpose of punishing
       the defendant” for filing the appeal. Pearce, 395 U.S. at 723-24. The Court noted, however,
       that “there exists no absolute constitutional bar to the imposition of a more severe sentence
                                                     -4-
       upon retrial.” Pearce, 395 U.S. at 723. The Court held that when a trial judge imposes a more
       severe sentence after remand from an appeal, the record must affirmatively show the reasons
       for the court’s decision to do so, and those reasons must relate to “objective information
       concerning identifiable conduct” by the defendant subsequent to the original sentencing
       proceedings. Pearce, 395 U.S. at 726.
¶ 14        Our legislature codified the Pearce holding in section 5-5-4 of the Unified Code of
       Corrections (730 ILCS 5/5-5-4 (West 2006)). That statute provides that a court “shall not
       impose a new sentence for the same offense or for a different offense based on the same
       conduct which is more severe than the prior sentence *** unless the more severe sentence is
       based upon conduct on the part of the defendant occurring after the original sentencing.” 730
       ILCS 5/5-5-4(a) (West 2006).
¶ 15        On resentencing in this case, the defendant was sentenced to 35 years for the murder
       conviction. This is a shorter sentence than his original sentence of natural life in prison. His
       30-year sentence for attempted murder was not changed. The question raised by the defendant
       is whether the trial court nevertheless made either of these sentences more onerous than the
       original sentences by ordering the reduced murder sentence to run consecutive to the
       defendant’s sentence for attempted murder when the sentences were originally ordered to run
       concurrently. For the reasons that follow, we conclude that it did not.
¶ 16        One of the first cases to address this question was this court’s decision in People v. Giller,
       191 Ill. App. 3d 710, 548 N.E.2d 341 (1989). There, the defendant was convicted on three
       charges of aggravated criminal sexual assault. Giller, 191 Ill. App. 3d at 711, 548 N.E.2d at
       341. He was originally sentenced to concurrent extended-term sentences of 60 years on all
       three charges. Giller, 191 Ill. App. 3d at 712, 548 N.E.2d at 342. On appeal, this court found
       the extended-term sentences to be improper. Giller, 191 Ill. App. 3d at 711, 548 N.E.2d at 341.
       On remand, the trial court imposed sentences of 30 years on all three charges. The court
       ordered two of those sentences to run concurrently, but ordered that the third be served
       consecutive to the other two sentences. Giller, 191 Ill. App. 3d at 711, 548 N.E.2d at 342.
¶ 17        The defendant again appealed. He argued, much as the defendant argues here, that
       consecutive sentences were not proper when concurrent sentences were originally imposed.
       Giller, 191 Ill. App. 3d at 712, 548 N.E.2d at 342. In rejecting his contention, this court stated
       that the “defendant’s sentence on remand was no more severe than his original sentence. His
       original sentence was for an extended term of 60 years’ imprisonment, and his resentence
       totaled 60 years’ imprisonment.” Giller, 191 Ill. App. 3d at 712, 548 N.E.2d at 342. We thus
       found that the new sentences complied with the requirements of section 5-5-4 of the Unified
       Code of Corrections, the same statute that is at issue here. Giller, 191 Ill. App. 3d at 711-12,
       548 N.E.2d at 342.
¶ 18        The quoted language in Giller focused on the aggregate length of all of the defendant’s
       sentences. As the defendant here correctly points out, subsequent decisions have focused
       instead on the severity of the individual sentences. For example, in People v. Kilpatrick, 167
       Ill. 2d 439, 657 N.E.2d 1005 (1995), the defendant was originally sentenced to consecutive
       terms of nine years and six years. After a motion to reconsider his sentence, the court vacated
       the consecutive sentences and imposed a “ ‘single sentence of 15 years.’ ” Kilpatrick, 167 Ill.
                                                     -5-
       2d at 441, 657 N.E.2d at 1006. The supreme court found that, even though the aggregate prison
       term remained the same, the new sentence ran afoul of the relevant statute because the
       individual sentences were increased from 9 and 6 years, respectively, to 15 years. Kilpatrick,
       167 Ill. 2d at 446-47, 657 N.E.2d at 1008; see also People v. Rivera, 212 Ill. App. 3d 519, 525,
       571 N.E.2d 202, 206 (1991). The rationale behind these holdings is that consecutive sentences
       for multiple offenses “constitute separate sentences for each crime of which a defendant has
       been convicted.” People v. Carney, 196 Ill. 2d 518, 529, 752 N.E.2d 1137, 1143 (2001).
       “[C]onsecutive sentences are not treated as a single sentence” for purposes of determining
       whether the new sentence is harsher than the original sentence. Kilpatrick, 167 Ill. 2d at 446,
       657 N.E.2d at 1008.
¶ 19       The defendant points to this rationale and argues that Giller was wrongly decided. He
       contends that these subsequent decisions show that Illinois takes a count-by-count approach to
       sentencing rather than determining the question based on the aggregate term in prison. This
       argument implies that under Giller, an increase in any individual sentence would be
       permissible as long as the aggregate was not increased. This apparent interpretation overstates
       our holding. In Giller, there was no question that none of the individual sentences were more
       onerous than the sentences originally imposed. The original sentences were extended-term
       sentences of 60 years; the sentences on remand were nonextended-term sentences of 30 years.
       Thus, unlike the Kilpatrick and Rivera courts, the Giller court was not called upon to consider
       the propriety of an increase to any individual sentence. The court was concerned only with the
       effect of running reduced sentences consecutively on the aggregate term in prison.
¶ 20       Under Kilpatrick and the express terms of section 5-5-4, courts may not increase any
       individual sentence. The implication of our decision in Giller is that courts also may not
       increase the aggregate term of multiple sentences. We note that, subsequent to our decision,
       other districts of the Illinois Appellate Court have found that an increase in the aggregate term
       a defendant will spend in prison does not run afoul of section 5-5-4 or raise due process
       concerns as long as no individual sentence is increased. See, e.g., People v. Harris, 366 Ill.
       App. 3d 1161, 1165-66, 853 N.E.2d 912, 916 (2006); People v. Sanders, 356 Ill. App. 3d 998,
       1005, 827 N.E.2d 17, 22-23 (2005). We do not believe this is an appropriate case to reconsider
       our holding in Giller. Here, the defendant acknowledges that the aggregate was not increased.
       Moreover, as we will next discuss, we find that neither of the individual sentences became
       more severe as a result of being made consecutive.
¶ 21       The defendant bases his argument to the contrary on People v. Pugh, 325 Ill. App. 3d 336,
       758 N.E.2d 319 (2001). There, the defendant was convicted on charges of murder, armed
       robbery, and forcible detention. Pugh, 325 Ill. App. 3d at 338, 758 N.E.2d at 322. He was
       originally sentenced to death for the murder charge and to concurrent sentences of 30 years and
       7 years for the additional charges. The defendant successfully appealed his death sentence, and
       the matter was remanded for resentencing. Pugh, 325 Ill. App. 3d at 338, 758 N.E.2d at 322.
¶ 22       On remand, the trial court sentenced the defendant to an extended term of 70 years for the
       murder charge, to be served consecutive to the concurrent sentences for armed robbery and
       forcible detention. Pugh, 325 Ill. App. 3d at 338, 758 N.E.2d at 322. The defendant appealed
       the new sentence. A panel of the First District found that by ordering the sentences to be served
                                                   -6-
       consecutively when they were originally ordered to run concurrently, the trial court
       “effectively increased the amount of time defendant would spend incarcerated for the armed
       robbery and forcible detention offenses.” Pugh, 325 Ill. App. 3d at 349, 758 N.E.2d at 330. In
       light of this finding, the court amended the sentencing order to provide that the sentences
       would run concurrently. Pugh, 325 Ill. App. 3d at 349, 758 N.E.2d at 330-31.
¶ 23       The State argues that Pugh is distinguishable from the instant case because the sentences
       there could not have been ordered to run consecutively when the defendant was originally
       sentenced. See Pugh, 325 Ill. App. 3d at 348-49, 758 N.E.2d at 330 (explaining that the statute
       permitting consecutive sentencing is not applicable when the death penalty is imposed). We
       disagree. The Pugh court expressly stated that it was concerned that imposing consecutive
       sentences would increase the defendant’s time in prison on the armed robbery and forcible
       detention charges. Pugh does, therefore, support the defendant’s position.
¶ 24       However, we are not bound by the decisions of other districts of the Illinois Appellate
       Court. People v. Damkroger, 408 Ill. App. 3d 936, 944, 946 N.E.2d 948, 954-55 (2011). The
       Pugh court did not explain the rationale for its conclusion that making the defendant’s new
       murder sentence run consecutive to his other sentences would result in more time in prison on
       the additional charges. We do not find this holding persuasive, particularly when it is at odds
       with the overwhelming weight of authority in Illinois, which holds that ordering sentences to
       run consecutively on remand does not itself constitute an increase in any individual sentence.
       See Harris, 366 Ill. App. 3d at 1165-66, 853 N.E.2d at 916; People v. Moore, 359 Ill. App. 3d
       1090, 1092-93, 835 N.E.2d 980, 982 (2005); Sanders, 356 Ill. App. 3d at 1005, 827 N.E.2d at
       22-23. We therefore decline to follow Pugh.
¶ 25       The defendant, however, argues that his 30-year attempt sentence will become more
       onerous due to the impact a consecutive sentence will have on the calculation of his sentence
       credit. We find this argument unavailing.
¶ 26       When a defendant is sentenced to concurrent sentences, he is entitled to credit against both
       sentences for any time spent in custody that is attributable to both charges. People v. Robinson,
       172 Ill. 2d 452, 462-63, 667 N.E.2d 1305, 1310 (1996) (citing 730 ILCS 5/5-8-7(b) (West
       1992)). By contrast, when consecutive sentences are imposed, all time spent in custody is
       credited only once against the aggregate term of the consecutive sentences. People v. Latona,
       184 Ill. 2d 260, 270-71, 703 N.E.2d 901, 907 (1998) (citing 730 ILCS 5/5-8-4(e) (West 1994)).
       The day-for-day good-time credit available to the defendant under the sentencing laws in effect
       in 1985 is calculated based on the same principle. See Armstrong v. Washington, 289 Ill. App.
       3d 306, 309, 682 N.E.2d 761, 763 (1997). Thus, the defendant argues, he will lose credit for the
       21 years he spent in prison prior to resentencing in this case, including the day-for-day
       good-time credit.
¶ 27       This argument overlooks the nature of the natural-life sentence imposed when the
       defendant was originally sentenced. Under that sentence, the defendant was not eligible for
       parole. See Heirens v. Prisoner Review Board, 162 Ill. App. 3d 762, 765, 516 N.E.2d 613, 615
       (1987) (citing Ill. Rev. Stat. 1985, ch. 38, ¶¶ 1003-3-3(d), 1005-8-1(d)). He was not eligible for
       any release except through a grant of executive clemency. Ill. Rev. Stat. 1985, ch. 38,
       ¶ 1003-3-3(d). Thus, the natural-life sentence could not have been reduced by any type of
                                                      -7-
       sentence credit. Had the defendant not challenged his original sentence, his 30-year-attempt
       sentence would have been discharged when satisfied, and the defendant would have remained
       in prison serving the original natural-life sentence for murder for the remainder of his life.
¶ 28        The resentencing order changes this result in two ways. First, instead of spending the
       remainder of his life in prison, the defendant will remain in prison long enough to satisfy both
       the 30-year and 35-year sentences, with credit for time served as well as all day-for-day
       good-time credit for which he is eligible. Second, because the Department of Corrections treats
       consecutive sentences as a single sentence for the limited purposes of calculating sentence
       credit and determining how consecutive sentences will be served (see 730 ILCS 5/5-8-4(e)
       (West 2012)), the mittimus reflects that the defendant’s attempted murder sentence has not
       been discharged.
¶ 29        We do not believe that this mittimus change rises to the level of a due process violation
       where, as here, neither sentence is more severe than the original sentences imposed. As the
       supreme court has repeatedly held, consecutive sentencing alters the manner in which a
       sentence is to be served, not the actual sentence. People v. Phelps, 211 Ill. 2d 1, 14, 809 N.E.2d
       1214, 1222 (2004); Carney, 196 Ill. 2d at 530, 752 N.E.2d at 1144. The amount of time the
       defendant will spend in prison as a result of the attempt charge remains unchanged, while the
       time he will spend in prison as a result of the murder sentence has been reduced. Thus, neither
       individual sentence has been made more severe.
¶ 30        Nevertheless, the defendant points out that if the original sentencing court had sentenced
       him to a concurrent term of 35 years for the murder, he would have been eligible for credit
       against that sentence. The question, however, is not whether the court has rendered a sentence
       that is more severe than a hypothetical original sentence the court might have imposed. Rather,
       the question is whether an otherwise authorized sentence is more severe than the original
       sentence the court actually imposed. As we have explained, that did not occur here. We thus
       conclude that the resentencing court did not violate principles of due process or the
       requirements of section 5-5-4 when it ordered the defendant’s sentence for murder to run
       consecutive to his sentence for attempt.
¶ 31        The defendant next argues that the sentencing court violated the double jeopardy clause of
       the fifth amendment by ordering that the sentences be served consecutively after he had
       already served 21 years of a concurrent sentence. We disagree.
¶ 32        There are three components to double jeopardy protection. The double jeopardy clause
       protects criminal defendants from (1) facing a new trial after an acquittal, (2) facing a second
       trial after a conviction, and (3) facing multiple punishments for the same offense. Jones v.
       Thomas, 491 U.S. 376, 380-81 (1989). The prohibition on multiple punishments is “ ‘limited to
       ensuring that the total punishment [does] not exceed that authorized by the legislature.’ ”
       Jones, 491 U.S. at 381 (quoting United States v. Halper, 490 U.S. 435, 450 (1989)). Generally,
       consecutive sentences do not implicate this aspect of double jeopardy because consecutive
       sentences do not constitute “ ‘punishment beyond that authorized by the jury’s verdict,
       provided that the sentence for each separate offense does not exceed the maximum permitted
       by statute for that offense.’ ” Phelps, 211 Ill. 2d at 14, 809 N.E.2d at 1222 (quoting Carney,
       196 Ill. 2d at 532, 752 N.E.2d at 1145).
                                                     -8-
¶ 33        However, the defendant argues that under the circumstances of this case, consecutive
       sentences raise double jeopardy concerns for two closely connected reasons. First, as the
       defendant correctly notes, double jeopardy requires that a defendant receive credit against his
       sentence for any time already served. Pearce, 395 U.S. at 718-19. This includes any good-time
       credit attributable to time already served. Pearce, 395 U.S. at 719 n.13. Here, the 2006
       resentencing order gives the defendant credit for all time served since his March 1985 arrest.
       The defendant argues that this is insufficient because under Latona, that credit need only be
       applied once toward the aggregate prison term; it need not be applied in full to each individual
       sentence. Latona, 184 Ill. 2d at 270-71, 703 N.E.2d at 907.
¶ 34        Ordinarily, this method of calculating sentencing credit does not raise double jeopardy
       concerns. As the Latona court pointed out, the purpose of sentence credit “is to ensure that
       defendants do not ultimately remain incarcerated for periods in excess of their eventual
       sentences.” Latona, 184 Ill. 2d at 270, 703 N.E.2d at 906 (citing People v. Ramos, 138 Ill. 2d
       152, 159, 561 N.E.2d 643, 647 (1990)). This, as we have noted, is a requirement of double
       jeopardy protection. See Pearce, 395 U.S. at 718-19. It was with this requirement in mind that
       the Latona court determined what sentence credit calculation method was appropriate for
       consecutive sentences.
¶ 35        The court explained that when a defendant is sentenced to concurrent prison terms, time
       spent in custody that is applicable to both offenses must be credited toward each of the
       sentences in order to satisfy the requirement that a defendant serve no more time than the
       sentence actually imposed. “[B]ecause the sentences are served concurrently,” the court
       explained, “the credits are applied in that manner as well.” Latona, 184 Ill. 2d at 271, 703
       N.E.2d at 907. In the context of consecutive sentences, however, giving a defendant credit for
       each day served and applying that credit to the defendant’s aggregate term is sufficient to
       ensure the defendant serves no more time than the sentence imposed. This is because
       “[d]efendants must be given credit for all the days they actually served, but no more.” Latona,
       184 Ill. 2d at 272, 703 N.E.2d at 907.
¶ 36        What makes this case different from Latona is the fact that the defendant here was in prison
       for 21 years prior to being sentenced to consecutive terms. For much of that time, he
       understood that he was serving two consecutive sentences. This brings us to the second aspect
       of the defendant’s contention.
¶ 37        As the defendant correctly points out, the double jeopardy clause protects a defendant’s
       interest in finality. People v. Levin, 157 Ill. 2d 138, 161, 623 N.E.2d 317, 328 (1993). This
       includes a legitimate interest in the finality of his sentence. Jones, 491 U.S. at 393-94 (Scalia,
       J., dissenting) (quoting United States v. DiFrancesco, 449 U.S. 117, 139 (1980)); Levin, 157
       Ill. 2d at 161, 623 N.E.2d at 328. Essentially, the defendant argues that he must be given credit
       against both sentences to protect his interest in the finality of the concurrent aspect of the
       original sentencing order. We are not persuaded.
¶ 38        Although the underlying facts are not analogous to those of the case before us, we find the
       United States Supreme Court’s discussion of this aspect of double jeopardy in Jones v. Thomas
       instructive. There, the defendant was originally convicted and sentenced in Missouri on
       charges of felony murder and attempted robbery. The attempted robbery was the underlying
                                                     -9-
       felony for the charge of felony murder. Jones, 491 U.S. at 378. The defendant was sentenced to
       natural life in prison for the murder and 15 years for the attempted robbery, to be served
       consecutively. The court ordered that the attempted robbery sentence be served first. Jones,
       491 U.S. at 378.
¶ 39       Four years after he was sentenced, the defendant filed a postconviction petition, alleging
       that it was improper for the court to impose sentences on both charges because the attempted
       robbery was the underlying felony for the felony-murder charge. Jones, 491 U.S. at 378. After
       another 4 years, the 15-year attempted robbery sentence was commuted to a shorter sentence
       with a release date that month. At this point, the postconviction petition was still pending.
       Jones, 491 U.S. at 379. The following year, the postconviction court granted the defendant’s
       petition and vacated the attempted robbery conviction and sentence. Jones, 491 U.S. at 379.
¶ 40       The defendant appealed, arguing that because he had fully satisfied the reduced sentence
       for attempted robbery, “his continued confinement under the longer sentence constituted
       double jeopardy.” Jones, 491 U.S. at 379. The state appeals court rejected this claim, finding
       that credit for his entire period of incarceration against the longer sentence was sufficient to
       protect him against double jeopardy. Jones, 491 U.S. at 379 (citing Thomas v. State, 665
       S.W.2d 621 (Mo. Ct. App. 1983)).
¶ 41       The Supreme Court first emphasized that the prohibition on multiple punishments is
       intended to prevent a sentencing court from imposing sentences that exceed those intended by
       the legislature. Jones, 491 U.S. at 381. The Court explained that its resolution of the
       defendant’s double jeopardy claim turned on the fact that this was the interest meant to be
       protected. Jones, 491 U.S. at 381. The Court acknowledged, however, that the double jeopardy
       clause “protects not only against punishment in excess of legislative intent, but also against
       additions to a sentence in a subsequent proceeding that upset a defendant’s legitimate
       expectation of finality.” (Emphasis added.) Jones, 491 U.S. at 385. In determining whether the
       Missouri state courts upset this expectation in the case before it, the Court analyzed what the
       defendant’s reasonable expectations were with regard to that sentence.
¶ 42       The Court noted that when the defendant was originally sentenced, he had no reason to
       expect to serve only the shorter attempted robbery sentence. “Indeed,” the Court explained,
       “his expectation at that point was to serve both consecutive sentences.” Jones, 491 U.S. at 386.
       This was because the Missouri state cases holding that a defendant could not be sentenced for
       both felony murder and the underlying felony were decided after the original sentences were
       imposed. Jones, 491 U.S. at 386. The Court further noted that, once the Missouri Supreme
       Court determined that both sentences could not be imposed, the defendant’s legitimate
       expectation was that he would serve one sentence or the other. Jones, 491 U.S. at 386. Thus,
       taking into account the defendant’s expectations, the Supreme Court found that the decision to
       leave his murder sentence intact did not constitute an increase or addition. Jones, 491 U.S. at
       385-86.
¶ 43       Here, when the defendant was originally sentenced, his expectation was that he would
       spend the rest of his life in prison. As explained previously, he had no legitimate expectation
       that his natural-life sentence for murder would actually be reduced by any available credit
       because that sentence carried with it no possibility of release during his lifetime. Moreover,
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       while a criminal defendant does have an interest in the finality of sentencing determinations,
       this interest is far less significant than his interest in not being convicted. Levin, 157 Ill. 2d at
       144, 623 N.E.2d at 320 (noting that this is so because “[t]he imposition of a particular sentence
       usually is not regarded as an acquittal of any more severe sentence than could have been
       imposed”). Assuming the defendant here had any legitimate expectation that a single aspect of
       his original sentence, viewed in isolation, would remain unchanged after he challenged the
       sentence, that expectation alone does not rise to the level of the interests meant to be protected
       by double jeopardy. Here, both the individual murder sentence and the aggregate term in
       prison have been reduced by the resentencing court. Thus, the court did not impose a
       punishment that exceeded the sentence the defendant expected to serve when he was originally
       sentenced. We find no double jeopardy violation.
¶ 44       For the foregoing reasons, the order of the postconviction court dismissing the defendant’s
       petition is affirmed.

¶ 45       Affirmed.




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