                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Purcell, 2013 IL App (2d) 110810




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    WILLARD H. PURCELL, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0810


Filed                      March 21, 2013


Held                       The dismissal of defendant’s successive postconviction petition was
(Note: This syllabus       affirmed, but his contention on appeal that he was entitled to credit
constitutes no part of     against his sentence to natural life in prison for first-degree murder was
the opinion of the court   accepted and the mittimus was modified to reflect a credit of 815 days for
but has been prepared      his presentence incarceration, notwithstanding the fact that he raised the
by the Reporter of         issue for the first time on appeal from the dismissal of his successive
Decisions for the          postconviction petition, since a term of natural life is a determinate
convenience of the         sentence pursuant to section 5-8-1 of the Unified Code of Corrections,
reader.)
                           and the credit is mandatory, even though it appears to be meaningless.


Decision Under             Appeal from the Circuit Court of Winnebago County, No. 01-CF-1783;
Review                     the Hon. Rosemary Collins, Judge, presiding.



Judgment                   Affirmed; mittimus modified.
Counsel on                  Alan D. Goldberg and Bryon M. Reina, both of State Appellate
Appeal                      Defender’s Office, of Chicago, for appellant.

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


Panel                       PRESIDING JUSTICE BURKE delivered the judgment of the court, with
                            opinion.
                            Justices Jorgensen and Hudson concurred in the judgment and opinion.




                                              OPINION

¶1           Defendant, William H. Purcell, appeals from the dismissal of his successive petition
        under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010)).
        His sole contention on appeal is that he is entitled to 815 days of credit against his sentence
        of natural life incarceration for first-degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West
        2000)). The State contends that defendant forfeited his claim because he failed to raise it in
        any of his postconviction petitions. We determine that a sentence of natural life incarceration
        is a determinate sentence and that, as a result, defendant is entitled to the credit. Accordingly,
        we modify the mittimus to reflect the credit.

¶2                                        I. BACKGROUND
¶3          Defendant was arrested on August 3, 2001, and remained in custody. In 2003, he was
        convicted and sentenced to a term of natural life in prison. No credit was given for time spent
        in presentence custody. Defendant did not raise any issues concerning sentencing credit on
        appeal, and his conviction and sentence were affirmed. People v. Purcell, 364 Ill. App. 3d
        283 (2006). Since then, defendant has filed multiple postconviction petitions, none of which
        raised an issue concerning sentencing credit.
¶4          In June 2011, defendant filed another postconviction petition. Like the others, that
        petition did not raise an issue about sentencing credit. The trial court denied leave to file the
        petition, and defendant appeals.

¶5                                        II. ANALYSIS
¶6          Defendant contends that he is entitled to credit against his sentence for time spent in
        presentence custody. The State contends that he forfeited the issue by failing to raise it in any
        of his postconviction petitions.

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¶7          “A defendant has a right to one day of credit for each day or portion of a day spent in
       custody before sentencing.” People v. Flores, 378 Ill. App. 3d 493, 495 (2008) (citing 730
       ILCS 5/5-8-7(b) (West 2004)). “In the context of a direct appeal, we have held that
       ‘[b]ecause sentence credit for time served is mandatory, a claim of error in the calculation
       of that credit cannot be waived.’ ” Id. (quoting People v. Whitmore, 313 Ill. App. 3d 117, 121
       (2000)). “ ‘[T]he trial court retains jurisdiction to amend the mittimus to reflect additional
       sentencing credit.’ ” Id. (quoting People v. O’Neill, 367 Ill. App. 3d 439, 440 (2006)). “In
       addition, we can modify the mittimus, at least when the issue is raised on direct appeal.” Id.
¶8          Likewise, when the issue is raised for the first time on appeal from the dismissal of a
       postconviction petition, we have construed the request as a motion to amend the mittimus
       and have awarded the credit. Id. at 496-97. This is consistent with our supreme court’s
       holding that, while a claim for credit is not a constitutional claim cognizable under the Act,
       it is a statutory “application of the defendant” that may be raised at any stage of court
       proceedings, even on appeal in a postconviction proceeding. People v. Caballero, 228 Ill. 2d
       79, 87-88 (2008). Thus, the appellate court, in the interests of an orderly administration of
       justice, may grant the relief requested. Id. at 88. “We review de novo the calculation of the
       number of days a defendant served in presentence custody, as resolving that issue does not
       require us to defer to the trial court’s reasoning.” People v. Gomez, 409 Ill. App. 3d 335, 341
       (2011).
¶9          Here, pursuant to Caballero, defendant may raise for the first time on appeal his claim
       that he is entitled to sentencing credit. The State contends that the supreme court indicated
       a change in the law in People v. Petrenko, 237 Ill. 2d 490, 502 (2010). But that case does not
       address the issue of sentencing credit and is not applicable.
¶ 10        The State also argues that, because applying the credit would be meaningless, we should
       not grant the request. Defendant, however, argues that the credit is mandatory against any
       determinate sentence and that a sentence of natural life is a determinate sentence. We agree
       with defendant.
¶ 11        The Unified Code of Corrections (Code) states that a defendant “shall be given credit on
       the determinate sentence *** for time spent in custody as a result of the offense for which
       the sentence was imposed.” 730 ILCS 5/5-8-7(b) (West 2000).
¶ 12        Section 5-8-1 of the Code (730 ILCS 5/5-8-1 (West 2000)) provides that, except as
       otherwise provided by the statute defining the offense, the sentence of incarceration for a
       felony shall be a determinate sentence “according to the following limitations.” 730 ILCS
       5/5-8-1(a) (West 2000). One of those limitations is that, for first-degree murder, if the trier
       of fact finds beyond a reasonable doubt that certain aggravating factors are present, the court
       may sentence the defendant to a term of natural life imprisonment. 730 ILCS 5/5-8-1(a)(1)(b)
       (West 2000).
¶ 13        The fundamental rule of statutory interpretation is to give effect to the intent of the
       legislature, and the best indication of that intent is a statute’s language, given its plain and
       ordinary meaning. People v. McCarty, 223 Ill. 2d 109, 124 (2006). Whether a sentence to
       natural life is a determinate sentence under the Code is a question of law that we review de
       novo. See People v. Bauman, 2012 IL App (2d) 110544, ¶ 20 (question of statutory


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       interpretation is reviewed de novo).
¶ 14       This court has previously, without analysis, and in a different context, referenced a
       sentence of natural life as an indeterminate sentence. People v. Franzen, 183 Ill. App. 3d
       1051, 1058 (1989). In support of his position that a natural life sentence is a determinate
       sentence, defendant cites to People v. Hill, 294 Ill. App. 3d 962 (1998). There, the defendant
       received credit against sentences that included a sentence of natural life. But other clearly
       determinate sentences were also involved, and the court did not address whether the credit
       could be given when only a natural life sentence is at issue. Indeed, at one point in the
       disposition, the court referred to the natural life sentence as an “indeterminate sentence.” Id.
       at 968. Defendant also cites to a 1953 case for the proposition that a life term is a determinate
       sentence. People v. Johnson, 415 Ill. 628, 630 (1953). There, the court held that a sentence
       “ ‘from life to life’ ” for armed robbery was a determinate sentence. But that case involved
       a different sentencing scheme. Thus we do not find it applicable. Instead, we look to the
       language of section 5-8-1 and the common-law definitions of determinate and indeterminate
       sentences.
¶ 15       Here, section 5-8-1 provides that a sentence of incarceration for a felony shall be a
       determinate sentence. Further, while a natural life sentence has been referred to as
       indeterminate, it is determinate under the common-law definitions of the terms. An
       indeterminate sentence has been described as follows:
                “ ‘An indeterminate sentence differs from a determinate sentence only in that the
           former imposes a minimum term; and an indeterminate sentence is one for the maximum
           period, subject to termination by the parole board or other agency at any time after
           service of the minimum period. Under an indeterminate sentence accused remains
           confined for the period defined by law, less “good time,” or unless some duly and legally
           constituted agency, such as the board of parole, intervenes.’ ” People v. Perruquet, 41
           Ill. App. 3d 543, 544 (1976) (quoting 24B C.J.S. Criminal Law § 1993 (1962)).
¶ 16       Put differently, an indeterminate sentence is “[a] sentence to imprisonment for the
       maximum period defined by law, subject to termination ... at any time after service of the
       minimum period. [Citation.]” (Internal quotation marks omitted.) United States v. Cordova-
       Beraud, 90 F.3d 215, 219 (7th Cir. 1996). In Illinois, our indeterminate sentencing structure
       involved reliance on a parole board to determine the time of release. That sentencing
       structure has since been superseded. See People v. Fern, 189 Ill. 2d 48, 60 (1999) (describing
       legislation abolishing the previous system of indeterminate sentencing and replacing it with
       a system of determinate sentencing).
¶ 17       Thus, applying section 5-8-1 and the general definitions of determinate and indeterminate
       sentences in light of the history of the legislative move to a determinate sentencing system,
       a term of natural life is not an indeterminate term subject to termination after service of a set
       minimum period. Instead, it is a determinate term under section 5-8-1, without the possibility
       of intervention by a parole board. As a result, the credit applies to defendant’s natural life
       sentence.
¶ 18       The State argues that it would be absurd to grant credit for time spent in presentence
       custody against a natural life sentence, since the credit would be meaningless. We agree that


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       the credit does appear to be meaningless, since it would never benefit the defendant.
       However, under Flores, the credit is mandatory, and a sentence that does not award
       mandatory credit is void. Flores, 378 Ill. App. 3d at 496 n.1; see Petrenko, 237 Ill. 2d at 506
       (judiciary is bound to impose consecutive natural life sentences where they are mandated by
       the legislature). Accordingly, we modify the mittimus to reflect the credit.
¶ 19       Finally, the State asks us to award costs and fees against defendant under People v.
       Johnson, 2012 IL App (1st) 111378, based on his filing of a frivolous pleading. That case
       affirmed a trial court’s award of sanctions under section 22-105 of the Code of Civil
       Procedure (735 ILCS 5/22-105 (West 2010)). Id. ¶¶ 10, 14.
¶ 20       Section 22-105 allows the trial court to award filing fees and court costs to the State
       when a prisoner files a frivolous pleading. In order to do so, the trial court must make a
       specific finding that the pleading is frivolous. 735 ILCS 5/22-105 (West 2010). Here, the
       issue of costs and fees under section 22-105 was not presented to the trial court. See CBS
       Outdoor, Inc. v. Village of Itasca, 2011 IL App (2d) 101117, ¶ 26. On appeal, defendant
       raised a cognizable claim regarding statutory credit. Accordingly, we decline to enter such
       an award.

¶ 21                                   III. CONCLUSION
¶ 22       Defendant is entitled to 815 days of credit against his sentence. Accordingly, we affirm
       the trial court’s judgment but we modify the mittimus to reflect the credit.

¶ 23      Affirmed; mittimus modified.




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