                                         2015 IL App (3d) 130287

                                Opinion filed August 28, 2015
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2015

     THE PEOPLE OF THE STATE OF                       )      Appeal from the Circuit Court
     ILLINOIS,                                        )      of the 10th Judicial Circuit,
                                                      )      Tazewell County, Illinois.
            Plaintiff-Appellee,                       )
                                                      )      Appeal No. 3-13-0287
            v.                                        )      Circuit No. 11-CF-391
                                                      )
     JOHN BAILEY,                                     )      Honorable
                                                      )      Scott A. Shore,
            Defendant-Appellant.                      )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Justices Carter and Wright concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Defendant, John Bailey, pled guilty to aggravated domestic battery and was sentenced to

     12 years in prison. On appeal, he argues that he was improperly subject to extended-term

     sentencing under section 5-5-3.2(b)(1) of the Unified Code of Corrections (Code) (730 ILCS 5/5-

     5-3.2(b)(1) (West 2010)) based on a prior California conviction. Defendant also contends that he

     is entitled to a $5-per-day credit against his fines for the time he spent in presentence custody.

     We remand for a new sentencing hearing.

¶2          Defendant was charged with aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West

     2010)), domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2010)) and interfering with reporting of
     domestic violence (720 ILCS 5/12-6.3(a) (West 2010)). At a pretrial hearing, the State noted

     that defendant was eligible for an extended-term sentence under section 5-5-3.2(b)(1) of the

     Code (730 ILCS 5/5-5-3.2(b)(1) (West 2010)) based on a 2005 California conviction. Defense

     counsel argued that he did not believe defendant was eligible for an extended term but was

     unable to confirm his belief because he had not yet received a copy of the 2005 conviction.

¶3          Defendant subsequently entered a guilty plea to the charge of aggravated domestic

     battery in exchange for the State's agreement to drop the two remaining charges. Prior to entry

     of the plea, the trial court questioned defendant to determine if his plea was voluntary and

     admonished defendant pursuant to Illinois Supreme Court Rule 402.            Because the parties

     disagreed as to whether defendant was eligible for an extended-term sentence, the trial court

     admonished defendant under the assumption that defendant was eligible for an extended term,

     telling defendant that he could be sentenced to a prison term of up to 14 years.              After

     admonishing defendant, the court found that the plea was knowing and voluntary and ordered a

     presentencing investigation report (PSI).

¶4          The PSI listed a number of prior convictions, including five felonies. Four of the felonies

     occurred in California, and one was charged in Illinois. The State argued that defendant's 2005

     California conviction for unlawful taking or driving of a vehicle under section 10851 of the

     California Vehicle Code (Cal. Veh. Code § 10851 (West 2004)) made him eligible for an

     extended-term sentence because the conviction was equivalent to a Class 2 felony offense of

     possession of a stolen or converted vehicle under section 4-103 of the Illinois Vehicle Code (625

     ILCS 5/4-103 (West 2004)). The State submitted to the court a certified copy of defendant's

     prior conviction, along with copies of section 10851 of the California Vehicle Code and section

     4-103 of the Illinois Vehicle Code. The order entered in the California conviction provided that


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     the maximum sentence for a section 10851 violation was 3 years in prison, a $10,000 fine and 4

     years of parole.

¶5          The trial court found that defendant's prior conviction for unlawful taking or driving of a

     vehicle was equivalent to the Illinois Class 2 felony of possession of a stolen vehicle because the

     elements of the offenses were nearly identical. It then concluded that defendant was eligible for

     an enhanced sentence and ordered him to serve an extended term of twelve years in prison, with

     four years of mandatory supervised release. The court ordered restitution in the agreed amount

     of $14,253.35, plus costs and fees, including a $5,000 fine. The sentencing order also provided

     that defendant was entitled to credit for 108 days spent in custody prior to sentencing.

¶6          Defendant filed a post-plea motion to reduce his sentence or, alternatively, to withdraw

     his guilty plea. The trial court denied the motion.

¶7                                              ANALYSIS

¶8                                                    I

¶9          In sentencing defendant, the trial court relied on section 5-5-3.2(b)(1) of the sentencing

     code. That section provides:

                "(b) The following factors *** may be considered by the court as reasons to

            impose an extended term sentence under Section 5-8-2 upon any offender:

                    (1) When a defendant is convicted of any felony, after having been

                previously convicted in Illinois or any other jurisdiction of the same or similar

                class felony or greater class felony, when such conviction has occurred within

                10 years after the previous conviction, excluding time spent in custody, and

                such charges are separately brought and tried and arise out of different series

                of acts[.]" 730 ILCS 5/5-5-3.2(b)(1) (West 2010).

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¶ 10          Defendant contends that his prior California conviction does not constitute the "same or

       similar class felony" required to trigger application of section 5-5-3.2(b)(1) because "similar

       class" means comparing offenses by analyzing the sentencing ranges, not the elements of the

       offense. Defendant argues that since the maximum sentence for the 2005 California conviction

       was three years, it is not a "similar class felony" when compared to a Class 2 felony in Illinois,

       which carries a sentencing range of three to seven years. Whether the statutory reference to a

       "similar class" requires consideration of the offenses' sentencing ranges is a question of statutory

       interpretation that we review de novo. See People v. Robinson, 172 Ill. 2d 452, 457 (1996).

¶ 11          The prime consideration in construing a statute is to ascertain and give effect to the

       legislative intent. People v. Jones, 223 Ill. 2d 569, 580 (2006). Where the statutory language is

       clear and unambiguous, the statute must be given effect without resorting to extrinsic aids for

       construction. Id. at 581. Where, however, the language is ambiguous and susceptible to more

       than one reasonable interpretation, a court may look beyond the express words and consider

       other interpretive tools to determine the statute's meaning. In re Antoine B., 2014 IL App (3d)

       110467-B, ¶ 6. In the event the legislature has provided reasonable definitions of terms within

       the statute, such definitions should be maintained. People v. Harman, 125 Ill. App. 3d 338, 345

       (1984). In construing the meaning of the words used in a particular statute, the court may

       consider the reason for the law, problems sought to be remedied, purposes to be achieved, and

       consequences of construing the statute one way or another. People v. Brown, 2013 IL 114196, ¶

       36. "An elementary canon of statutory construction teaches us that where the legislature uses

       certain words in one instance, and different words in another, different results were intended."

       Aurora Pizza Hut, Inc. v. Hayter, 79 Ill. App. 3d 1102, 1105-06 (1979); see also Condell




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       Hospital v. Illinois Health Facilities Planning Board, 124 Ill. 2d 341, 366 (1988) (the mention of

       one thing implies the exclusion of the other).

¶ 12           Section 5-5-3.2(b)(1) permits the trial court to impose an extended-term sentence when

       the defendant has been convicted of a felony in any jurisdiction within the past ten years if the

       prior conviction is for "the same or similar class felony or greater class felony." 730 ILCS 5/5-5-

       3.2(b)(1) (West 2010). "Same or similar class" is not defined in the statute. Although Illinois

       has a distinct classification scheme, offenses in other states are classified differently or not at all.

       Moreover, the relevant legislative history contains no mention of "class" comparison between

       Illinois offenses and convictions in other jurisdictions.        The State interprets the statute as

       meaning the elements of the crime, which furthers the reasonable goal of uniformity. Defendant

       believes that the statute means the measure of the range of the sentence, assuming a different

       sentencing range is not a "similar" class. Given that the language is open to more than one

       reasonable interpretation, it is appropriate to look to extrinsic aids and tools of interpretation to

       determine its meaning.

¶ 13           Different extended-term sentencing provisions in the Code define exactly what standard

       to apply; that is, the court should evaluate only the elements of the similar offense. Under

       section 5-4.5-95(b) of the Code, a defendant must be sentenced as a Class X felon if the

       defendant has "been twice convicted in any state or federal court of an offense that contains the

       same elements as an offense now *** classified in Illinois as a Class 2 or greater Class felony."

       (Emphasis added.) 730 ILCS 5/5-4.5-95(b) (West 2012). Under section 5-5-3(c)(2)(F) of the

       Code, a defendant is subject to a mandatory sentence of imprisonment if he or she has been

       convicted of "a Class 2 or greater felony, including any state or federal conviction for an offense

       that contained, at the time it was committed, the same elements as an offense now classified as a


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       Class 2 or greater felony." 730 ILCS 5/5-5-3(c)(2)(F) (West 2012). When the legislature

       decides to authorize certain sentencing enhancement provisions in some cases, while declining to

       impose similar limits in other provisions within the same sentencing code, it indicates that

       different results were intended. See Condell Hospital, 124 Ill. 2d at 366. When the legislature

       intends to limit sentencing considerations to an analysis of only the elements of an offense, it

       will expressly do so. Section 5-5-3.2(b)(1) of the Code does not limit the courts’ consideration

       to the elements of the offense. Thus, consideration of the elements, while appropriate, is not the

       only mode of analysis.

¶ 14          After reviewing the statute and applying the rules of statutory construction, we believe

       the legislative intent was to consider both the sentencing range and the elements in determining

       whether a conviction in another jurisdiction is of "the same or similar class felony." In making a

       section 5-5-3.2(b)(1) determination, a comparison should also include the sentencing range of the

       prior conviction with the sentencing range of an equivalent Illinois offense. Illinois utilizes a

       distinct and comprehensive scheme of classification of felonies in that all felony offenses in the

       same class have the same sentencing range. Thus, an implicit factor in determining whether an

       offense is a similar class offense is a comparison of the sentencing ranges that apply.

¶ 15          Moreover, Illinois courts have upheld the imposition of extended-term sentences where

       the trial court has found that the prior out-of-state conviction constituted the same or similar

       class felony based on a comparison of sentencing ranges. See People v. Cavins, 288 Ill. App. 3d

       173, 184-85 (1997) (appellate court affirmed trial court's finding that Iowa kidnapping charge,

       which carries an indeterminate sentence of not more than 10 years' imprisonment, was a similar

       class felony to a Class 2 felony in Illinois); People v. Daniels, 194 Ill. App. 3d 648, 652 (1990)

       (appellate court noted that defendant's prior Mississippi burglary, which carried a possible


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       penalty ranging from 5 to 40 years, qualified as "a Class 2 felony or greater" under section 5-5-

       3(c)(2)(F)). Thus, in using the term "same or similar class felony," trial courts should consider

       both the sentencing range and the elements of the offense in determining whether the defendant

       is eligible for an extended-term sentence under section 5-5-3.2(b)(1).

¶ 16          Here, the record demonstrates that the trial court considered only the elements of the

       offense and did not compare the California offense to the equivalent Illinois Class 2 offense in

       light of the different sentencing range. We therefore remand the cause to the trial court for a new

       sentencing hearing in order to compare the sentencing ranges, as well as the elements of the

       offenses, to determine whether the California conviction is the “same or similar class felony” to

       the Class 2 offense for which defendant was sentenced.

¶ 17                                                   II

¶ 18          Defendant argues that he is entitled to a $5-per-day credit for each of the 108 days he

       spent in presentence custody, for a total of $540. The State agrees.

¶ 19          An incarcerated person against whom a fine is levied is entitled to a credit of $5 per day

       for every day served in custody prior to sentencing. 725 ILCS 5/110-14(a) (West 2010). The

       right to receive the statutorily mandated credit "is not waived despite any failure to raise the

       'issue' at the trial level" and "is cognizable on appeal as a matter of course subject to a

       defendant's application for it." People v. Woodard, 175 Ill. 2d 435, 456-57 (1997).

¶ 20          The trial court noted in the sentencing order that defendant served 108 days in

       presentence custody.    The order also indicates that defendant was assessed a $5,000 fine.

       However, the order does not show that defendant received a $5-per-day credit against that fine.

       On remand, defendant is entitled to receive a $540 credit against any assessed fines.

¶ 21                                            CONCLUSION


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¶ 22          The judgment of the circuit court of Tazewell County is reversed and remanded for

       further proceedings.

¶ 23          Reversed and remanded.




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