                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Miller, 2011 IL App (5th) 090679




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    GARY L. MILLER, Defendant-Appellant.



District & No.             Fifth District
                           Docket No. 5-09-0679


Filed                      November 21, 2011


Held                       The dismissal of defendant’s pro se postconviction petition alleging that
(Note: This syllabus       his trial counsel was ineffective in failing to object to the double
constitutes no part of     enhancement of his sentence was affirmed, since defendant argued on
the opinion of the court   appeal that his trial counsel was ineffective in failing to advise him to
but has been prepared      surrender his bond when he was taken into custody on a subsequent
by the Reporter of         charge so that he could become entitled to additional days of sentencing
Decisions for the          credit, but that issue was dependent on a finding of ineffective assistance
convenience of the         of counsel that was forfeited when it was raised for the first time on
reader.)
                           appeal.


Decision Under             Appeal from the Circuit Court of Marion County, No. 07-CF-285; the
Review                     Hon. Sherri L.E. Tungate, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Johannah B. Weber, and Rita K. Peterson, all of
Appeal                     State Appellate Defender’s Office, of Mt. Vernon, for appellant.

                           Matt Wilzbach, State’s Attorney, of Salem (Patrick Delfino, Stephen E.
                           Norris, and Rebecca E. McCormick, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE CHAPMAN delivered the judgment of the
                           court, with opinion.
                           Justices Welch and Stewart concurred in the judgment and opinion.




                                             OPINION

¶1          The defendant, Gary L. Miller, appeals the circuit court’s summary dismissal of his pro
        se postconviction petition. He prays that this court will find that defense counsel was
        ineffective and amend the mittimus to reflect an additional 34 days of credit. For the
        following reasons, we affirm.

¶2                                        BACKGROUND
¶3          The defendant was charged with burglary (720 ILCS 5/19-1(a) (West 2004)) and theft
        under $300 (720 ILCS 5/16-1(a) (West 2004)). He posted bond on the charge on October 31,
        2007. The next day he was arrested for attempted burglary (720 ILCS 5/8-4(a) (West 2004)).
        The defendant remained in jail on that charge. The record does not indicate that the defendant
        surrendered his bond in the burglary and theft case.
¶4          On December 3, 2007, the defendant pled guilty to theft under $300 in exchange for the
        State recommending a six-year prison sentence. The State also dismissed all other charges,
        including the attempted burglary charge. The defendant was released on bond until January
        4, 2008. The defendant was given sentencing credit from August 29, 2007, through October
        31, 2007. He did not file a motion to withdraw his guilty plea.
¶5          The defendant filed a pro se postconviction petition alleging that he received ineffective
        assistance of counsel because trial counsel did not object to the double enhancement of the
        defendant’s sentence. On November 16, 2009, the court dismissed the defendant’s petition.
        The defendant filed this timely appeal. After filing his notice of appeal, the defendant filed
        a pro se motion for an order nunc pro tunc alleging that he was entitled to additional
        sentencing credit. However, the circuit court did not enter an order regarding the motion
        because the appellate court had already assumed jurisdiction at the time of the filing of the

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       motion.

¶6                                            ANALYSIS
¶7         We review de novo the circuit court’s dismissal of a postconviction petition without an
       evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 389 (1998). On appeal, the
       defendant argues that trial counsel was ineffective for failing to advise him to surrender his
       bond when he was taken into custody on a subsequent charge. He contends that this failure
       entitles him to additional days of sentencing credit for the time frame of November 1, 2007,
       through December 4, 2007. We note that this argument was not raised in his postconviction
       petition.
¶8         In response, the State argues that the defendant is precluded from raising this issue
       because it was not brought in his initial postconviction petition. The State argues that the
       defendant’s claim is not merely that of a sentencing issue which can be brought at any time
       but that the issue is one of ineffective assistance of counsel.
¶9         In the defendant’s reply brief, he argues that it is irrelevant whether this issue was
       properly presented to the reviewing court because it is simply a matter of crediting him with
       additional sentencing credit, which the defendant claims is mandatory. Therefore, the
       defendant requests that this issue be treated as a motion to amend his mittimus.
¶ 10       The issues before this court are whether the defendant was held simultaneously on two
       charges and whether due to this incarceration, the defendant is entitled to additional
       presentencing credit. The Illinois Supreme Court has held that “a defendant who is out on
       bond on one charge, and who is subsequently rearrested and returned to custody on another
       charge, is not returned to custody on the first charge until his bond is withdrawn or revoked.”
       People v. Arnhold, 115 Ill. 2d 379, 383 (1987). Therefore, a defendant is not in simultaneous
       custody on more than one charge until he withdraws or revokes his bond on the initial
       charge. Id. at 384.
¶ 11       In the instant case, the defendant agrees that he did not revoke or withdraw his bond.
       However, he argues that this failure was the result of ineffective assistance of counsel and
       that since this is a sentencing issue the court can review it at any time.
¶ 12       In support of this argument, the defendant relies upon, inter alia, this court’s decision in
       People v. DuPree, 353 Ill. App. 3d 1037 (2004). In DuPree, the defendant posted bond in
       one case and was subsequently arrested on another charge. Id. at 1046. The defendant never
       withdrew his previous bond or sought to revoke the bond. Id. On appeal, he argued that he
       was entitled to additional sentencing credit, an issue that had not been presented in his
       motion to reconsider his sentence. Id. at 1041. The court initially noted “that sentencing
       credit for time served is a right afforded by statute and that, thus, a defendant’s failure to
       present the issue to a trial court, either by contemporaneous objection or by postsentencing
       motion, does not result in the procedural default of this issue.” Id. at 1045.
¶ 13       The court found that the defendant did not revoke his bond but held: “It behooved
       defense counsel to move to withdraw the bond posted in the instant case in order to allow the
       defendant to earn credit against his eventual sentences in the instant case at the same time
       that he earned credit against his [current] sentence ***. Counsel’s failure to do so prompts

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       this court to remand the case to the circuit court *** to amend the mittimus to reflect a credit
       against the defendant’s sentences ***.” DuPree, 353 Ill. App. 3d at 1049.
¶ 14        While we agree with DuPree that a sentencing-credit issue can be brought at any time,
       the existence of the sentencing-credit issues in both DuPree and the instant case is dependent
       upon a finding that counsel was ineffective. Therefore, the real issue in this case is whether
       defense counsel was ineffective in not advising the defendant to revoke or withdraw his
       bond. It is clear from the holding in Arnhold that without the revocation or withdrawal of the
       bond, a defendant is not being held in simultaneous custody. Unless he can establish that
       counsel was ineffective for failing to seek revocation or withdrawal of the bond, the
       defendant is not entitled to additional credit because he was never returned to custody on the
       initial charge.
¶ 15        However, as noted above, the defendant’s argument of ineffective assistance regarding
       the revocation of his bond was not raised in his postconviction petition. It is well settled that
       a defendant may not raise a claim for the first time on appeal. People v. Jones, 211 Ill. 2d
       140, 148 (2004). Moreover, the record clearly does not contain the facts necessary for this
       court to determine if there was ineffective assistance of counsel regarding the revoking of the
       defendant’s bond. Thus, we decline to follow DuPree in the holding that the defendant is
       entitled to additional credit in a case in which the defendant did not properly raise the issue
       of ineffective assistance of counsel.
¶ 16        “However, this holding does not leave a postconviction petitioner such as defendant
       entirely without recourse. A defendant who fails to include an issue in his original or
       amended postconviction petition, although precluded from raising the issue on appeal from
       the petition’s dismissal, may raise the issue in a successive petition if he can meet the
       strictures of the ‘cause and prejudice test.’ ” Jones, 211 Ill. 2d at 148.
¶ 17        In conclusion, we find that although the defendant raises an issue of sentencing credit,
       this issue is dependent on a finding of ineffective assistance of counsel, which is raised for
       the first time on appeal. Therefore, the issue is deemed forfeited on appeal, and we decline
       to amend the defendant’s mittimus.

¶ 18                                  CONCLUSION
¶ 19      For the foregoing reasons, we affirm the circuit court’s dismissal of the defendant’s
       postconviction petition.

¶ 20       Affirmed.




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