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                                 Appellate Court                        Date: 2019.08.12
                                                                        13:56:35 -05'00'



                  People v. Washington, 2019 IL App (1st) 172372



Appellate Court      THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption              MALVIN WASHINGTON, Defendant-Appellant.



District & No.       First District, First Division
                     Docket No. 1-17-2372



Filed                June 10, 2019



Decision Under       Appeal from the Circuit Court of Cook County, No. 04-CR-21005; the
Review               Hon. Ursula Walowski, Judge, presiding.



Judgment             Affirmed as modified.


Counsel on           Alison R. Flaum and Jeffrey Urdangen, of Bluhm Legal Clinic, of
Appeal               Chicago, for appellant.

                     Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                     Joseph Alexander, and Daniel Piwowarczyk, Assistant State’s
                     Attorneys, of counsel), for the People.



Panel                JUSTICE WALKER delivered the judgment of the court, with
                     opinion.
                     Justices Pierce and Griffin concurred in the judgment and opinion.
                                             OPINION

¶1       Defendant Malvin Washington was convicted in the circuit court of Cook County of the
     Class 1 felony of second degree murder and the Class X felony of aggravated battery with a
     firearm, and he was sentenced to consecutive terms of 15 years for the second degree murder
     and 10 years for the aggravated battery with a firearm. Following his sentencing, Malvin asked
     the trial court to award sentencing credit multiplied by a factor of 1.5 for time spent
     participating in qualified educational, vocational, and other programs while in the Cook
     County Department of Corrections (CCDOC). He sought enhanced programming credit
     against his sentence for second degree murder pursuant to section 3-6-3 of the Unified Code
     of Corrections (Code). 730 ILCS 5/3-6-3 (West 2016). The trial court denied the enhanced
     programming credit in reliance on People v. Duke, 305 Ill. App. 3d 169 (1999) (holding that
     inmates serving consecutive sentences for a Class X felony and some other, non-Class X felony
     are ineligible for programming credit during the entire term of imprisonment). Malvin appeals
     from the trial court’s order denying enhanced programming credit. We hold that section 3-6-3
     does not prohibit awarding enhanced programming credit for the part of a consecutive sentence
     that punishes an inmate for a crime not specifically listed as cause for denying the enhanced
     programming credit. Accordingly, we reverse the trial court’s denial of Malvin’s request for
     enhanced programming credit on his second degree murder conviction.

¶2                                       I. BACKGROUND
¶3       On March 21, 2004, cars driven by Antonio Washington and Antoine Lee collided. People
     from the neighborhood converged on the accident scene. Antoine’s uncle, Ronald Lee,
     physically confronted Antonio’s cousin, Malvin. Malvin shot Ronald three times. A stray bullet
     killed Marquis Reed.
¶4       Prosecutors charged Malvin with the first degree murder of Reed and aggravated battery
     with a firearm for the injury to Ronald. At the trial, Malvin testified that he acted in self-
     defense, but a jury found Malvin guilty as charged. The appellate court ordered a new trial,
     and the Illinois Supreme Court affirmed the appellate court’s judgment. People v. Washington,
     2012 IL 110283. Malvin remained incarcerated as the case worked its way through the appeals
     process to a new trial. He used his time productively, earning a high school equivalency
     diploma and accumulating more than 5000 hours in educational programs, much of it for
     tutoring other inmates. He also completed three classes at DePaul University.
¶5       On retrial, a jury found Malvin guilty of second degree murder and aggravated battery with
     a firearm. Witnesses at the sentencing hearing spoke highly of Malvin’s educational
     achievements while in the CCDOC programs. One CCDOC official testified that Malvin
     accomplished the rare feat of having no disciplinary infractions despite his long time in
     CCDOC. Another CCDOC official testified to the trust accorded to Malvin.
¶6       The trial judge imposed sentences of 10 years for aggravated battery and 15 years for
     second degree murder, with the sentences to run consecutively. Malvin asked the trial court to
     award credit against his sentence for programming days while in the custody of the CCDOC.
     The trial court, following Duke, 305 Ill. App. 3d 169, held that Malvin was not entitled to any
     enhanced programming credit because he was convicted of a Class X felony. Malvin now
     appeals.


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¶7                                            II. ANALYSIS
¶8         On appeal, Malvin argues the trial court erred when it denied his enhanced programming
       credit pursuant to the version of section 3-6-3 (730 ILCS 5/3-6-3 (West 2016)) in place at the
       time of his sentencing. Malvin does not challenge the sufficiency of the evidence supporting
       his convictions. We review de novo the issue of statutory interpretation. People v. Whitney,
       188 Ill. 2d 91, 98 (1999).
¶9         We note that the General Assembly amended section 3-6-3(a)(4) to extend enhanced
       programming credit to prisoners convicted of Class X felonies, but the General Assembly
       specifically limited the amount of credit available to prisoners already serving sentences when
       the amendment went into effect. The Code now provides, “sentence credit under paragraph
       *** (4) *** of this subsection (a) may be awarded to a prisoner who is serving a sentence for
       an offense described in paragraph (2), (2.3), (2.4), (2.5), or (2.6) for credit earned on or after
       the effective date of this amendatory Act.” Pub. Act 100-3 (eff. Jan. 1, 2018) (amending 730
       ILCS 5/3-6-3(a)(4.7)). The public act sets its effective date as January 1, 2018. Malvin seeks
       enhanced programming credit for programs completed prior to the amendment. Thus, the
       amendment does not apply to the facts here.
¶ 10       Malvin does not seek any programming credit against his sentence as a Class X offender.
       Malvin argues, however, that he should be awarded enhanced programming credit against his
       second degree murder sentence.
¶ 11       Prior to the January 2018 amendment, section 3-6-3 of the Code restricted the amount of
       credit awarded to “a prisoner serving a sentence for *** aggravated battery with a firearm” to
       “no more than 4.5 days of sentence credit for each month of his or her sentence of
       imprisonment.” 730 ILCS 5/3-6-3(a)(2)(ii) (West 2016). Section 3-6-3(a)(2.1) provided that,
       “[f]or all offenses, other than those enumerated in subdivision (a)(2)(i), (ii), or (iii) *** the
       rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall
       receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730
       ILCS 5/3-6-3(a)(2.1) (West 2016). The parties agree that second degree murder qualifies as an
       offense not enumerated in subsections (a)(2)(i), (ii), or (iii).
¶ 12       Section 3-6-3(a)(4) permits awarding enhanced programming credit provided for in section
       3-6-3(a)(2.1) if the prisoner participates in certain programs while in CCDOC, including the
       educational programs in which Malvin participated. Section 3-6-3(a)(4) provides:
               “The rules and regulations shall also provide that the sentence credit accumulated and
               retained under paragraph (2.1) of subsection (a) of this Section by any inmate during
               specific periods of time in which such inmate is engaged full-time in *** educational
               programs *** shall be multiplied by a factor of *** 1.50 for program participation ***.
               *** [S]entence credit, subject to the same offense limits and multiplier provided in this
               paragraph, may be provided to an inmate who was held in pre-trial detention prior to
               his or her current commitment to the Department of Corrections and successfully
               completed *** educational program[s] *** provided by the county department of
               corrections or county jail. Calculation of this county program credit shall be done at
               sentencing *** and shall be included in the sentencing order.” 730 ILCS 5/3-6-3(a)(4)
               (West 2016).
       The section restricted the programming credit: “no inmate shall be eligible for the additional
       sentence credit under this paragraph (4) *** if convicted of *** a Class X felony.” 730 ILCS
       5/3-6-3(a)(4) (West 2016).

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¶ 13        The Fourth District Appellate Court of Illinois addressed a similar issue as applied to the
       Illinois Department of Corrections (IDOC) in Duke, 305 Ill. App. 3d 169. The trial court in
       Duke sentenced Mr. Duke to 35 years for a Class X felony and to 30 months for a Class 3
       felony, with the sentences to run consecutively. Mr. Duke participated in prison programs and
       sought programming credit against the portion of his sentence that punished him for a Class 3
       felony. Mr. Duke filed a writ of mandamus because the IDOC found that Mr. Duke’s Class X
       felony conviction made him ineligible for programming credit against his sentences under
       section 3-6-3(a)(4) (730 ILCS 5/3-6-3(a)(4) (West 2016)). The trial court issued the mandamus
       ordering the IDOC to consider Mr. Duke eligible for enhanced programming credit against the
       portion of his sentence attributable to the Class 3 felony conviction, and the IDOC appealed.
       The appellate court held that the Code disallowed programming credit for any portion of Mr.
       Duke’s sentence. In reversing the trial court, the Duke court relied on section 3-6-3(b), which
       provided, “[w]henever a person is or has been committed under several convictions, with
       separate sentences, the sentences shall be construed under [s]ection 5-8-4 [of the Code] in
       granting and forfeiting of sentence credit.” 730 ILCS 5/3-6-3(b) (West 2016). Section 5-8-4(e)
       provided:
                “[i]n determining the manner in which consecutive sentences of imprisonment *** will
                be served, [the IDOC] shall treat the defendant as though he or she had been committed
                for a single term subject to each of the following incidents:
                                                     ***
                     (4) The defendant shall be awarded credit against the aggregate maximum term and
                the aggregate minimum term of imprisonment for all time served in an institution ***
                at the rate specified in Section 3-6-3 [of this Code].” 730 ILCS 5/5-8-4(g) (West 2016).
¶ 14        The Duke court found “a clear rule that the [IDOC] must treat consecutive sentences as a
       ‘single term’ of imprisonment for the purposes of awarding any good-time credit” and
       concluded that the IDOC must award credit against the combined sentences at a single rate for
       the entire combined term of imprisonment and the IDOC must use only the credit rate for the
       crime subject to the harsher punishment. (Emphasis omitted.) Duke, 305 Ill App. 3d at 173.
       The Duke court held that “the straightforward application of this rule requires the Director to
       treat an inmate serving consecutive sentences for a Class X felony and some other, non-Class
       X felony as ineligible for enhanced good-time credit during the entire ‘single term’ of
       imprisonment.” Id.
¶ 15        The Duke court’s analysis does not apply to enhanced programming credit while in the
       CCDOC because the issue in Duke was whether Mr. Duke was eligible for programming credit
       while in the custody of the IDOC. The Duke rule conflicts with our supreme court’s
       observation that “[o]ur jurisprudence *** makes it clear that consecutive sentences do not
       constitute a single sentence and cannot be combined as though they were one sentence for one
       offense. Each conviction results in a discrete sentence that must be treated individually.”
       People v. Carney, 196 Ill. 2d 518, 530 (2001). The rule in Duke also undermines public policy
       because educational programs, prison employment, and other skills learned while incarcerated
       promote habits and responsibility that contribute to more cooperative inmates and ultimately
       lower levels of recidivism.
¶ 16        We hold, in accord with the courts’ expectations and IDOC practice (see 20 Ill. Adm. Code
       107.120 (2019)), that the reference in section 5-8-4 to “treat[ing] consecutive sentences as a


                                                   -4-
       ‘single term’ of imprisonment” does not preclude awarding credits at differing rates against
       different sentences under the provisions of sections 3-6-3(a)(2) and (a)(2.1).
¶ 17       The State raises an argument not addressed in Duke. The State asserts that the applicable
       version of section 3-6-3(a)(4) provided that “no inmate shall be eligible for the additional
       sentence credit under this paragraph (4) *** if convicted of *** a Class X felony.” 730 ILCS
       5/3-6-3(a)(4) (West 2016). The State contends that, because the trial court found Malvin guilty
       of a Class X felony, he can never become eligible for additional credit under section 3-6-
       3(a)(4), because he will always count as an inmate convicted of a Class X felony.
¶ 18       We find the statute ambiguous. The clause “an inmate convicted of a Class X felony” could
       refer to any incarcerated person who has ever had a Class X felony conviction on his record, it
       could refer to a prisoner serving a sentence for a Class X felony, or it could refer to a prisoner
       who is serving a sentence for a Class X offense and a sentence for a non-Class X offense. See
       People v. Donoho, 204 Ill. 2d 159, 172 (2003) (a statute is ambiguous if subject to two or more
       reasonable interpretations). If the General Assembly meant the prohibition to apply only for
       the duration of his sentence for the Class X felony, Malvin qualifies for the enhanced
       programming credit against his 15-year sentence for second degree murder.
¶ 19       The transcript of the legislative debates on the bill that included the provision precluding
       programming credits for Class X felons has no legislator commenting on consecutive
       sentences. 86th Ill. Gen. Assem., House Bill 3167, 1990 Sess.; 86th Ill. Gen. Assem., Senate
       Proceedings, June 20, 1990, at 234; 86th Ill. Gen. Assem., Senate Proceedings, June 21, 1990,
       at 52-55. The bill’s sponsor emphasized that the bill encouraged inmates to engage in
       educational programs in hopes of reducing recidivism. 86th Ill. Gen. Assem., House
       Proceedings, May 16, 1990, at 33-34. The Senate Judiciary Committee recommended the
       language denying programming credit to inmates convicted of Class X offenses (86th Ill. Gen.
       Assem., Senate Proceedings, June 14, 1990, at 14), but nothing in the legislative history
       indicates an intent to deprive persons convicted of Class X offenses from receiving program
       credit on other convictions.
¶ 20       Due to the absence of pertinent legislative history, we turn to general principles of statutory
       construction. When a statute is ambiguous “the rule of lenity is appropriate.” People v. Lashley,
       2016 IL App (1st) 133401, ¶ 63. The rule of lenity provides that ambiguous criminal statutes
       will generally be construed in the defendant’s favor. People v. Gutman, 2011 IL 110338, ¶ 12;
       see also Whitney, 188 Ill. 2d at 97-98. Therefore, we adopt the construction that favors Malvin.
       Applying the rule of lenity, we find that section 3-6-3 permits awarding enhanced
       programming credit against the part of a consecutive sentence that punishes an inmate for a
       crime not specifically listed as requiring exclusion from enhanced programming credit. See
       730 ILCS 5/3-6-3(a)(2), (2.1) (West 2016). We hold Malvin may be awarded day-for-day
       credit under section 3-6-3(a)(2.1), multiplied by a factor of 1.5 for time spent participating in
       qualified programs, against his sentence for second degree murder.
¶ 21       The State does not contest Malvin’s calculation that his program participation totals 925
       full days. Multiplied by a factor of 1.5, the credit comes to 1387.5 days. As Malvin has been
       awarded the 925 days of day-for-day credit for that time, the enhanced programming credit
       available under section 3-6-3(a)(4) is 462 days. See People v. Montalvo, 2016 IL App (2d)
       140905, ¶ 19. Accordingly, we hold that, due to Malvin’s participation in programming while
       in custody at the CCDOC, he is entitled to an additional 462 days of credit against his 15-year
       sentence for second degree murder.

                                                    -5-
¶ 22                                       III. CONCLUSION
¶ 23       Section 5-8-4 of the Code, as interpreted by the IDOC and the courts, has always permitted
       the IDOC to award different credits against separate parts of consecutive sentences. We find
       that section 3-6-3 does not prohibit the IDOC from awarding an inmate serving consecutive
       sentences enhanced programming credit against the part of the consecutive sentence that
       punishes the inmate for a crime not specifically listed as cause for denying the credit. Hence,
       Malvin is awarded enhanced programming credit against his second degree murder conviction.
       For the reasons stated, we affirm the judgment of the trial court. However, pursuant to Illinois
       Supreme Court Rule 366(a) (eff. Feb. 1, 1994), we modify the mittimus to reflect 462
       additional days’ sentence credit.

¶ 24      Affirmed as modified.




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