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                              Appellate Court                            Date: 2017.08.07
                                                                         13:47:48 -05'00'




                   People v. Scalise, 2017 IL App (3d) 150299



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           RONALD A. SCALISE, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0299



Filed             June 14, 2017



Decision Under    Appeal from the Circuit Court of Will County, No. 08-CF-1420; the
Review            Hon. Edward A. Burmila, Jr., Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Peter A. Carusona, and Andrew J. Boyd, of State
Appeal            Appellate Defender’s Office, of Ottawa, for appellant.

                  James W. Glasgow, State’s Attorney, of Joliet (Dawn D. Duffy, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             JUSTICE SCHMIDT delivered the judgment of the court, with
                  opinion.
                  Justice O’Brien concurred in the judgment and opinion.
                  Justice McDade dissented, with opinion.
                                             OPINION

¶1       Defendant, Ronald A. Scalise, appeals from the dismissal of his petition for relief from
     judgment. On appeal, defendant’s sole issue is a request for the application of the $5-per-day
     presentence incarceration credit. We affirm.

¶2                                               FACTS
¶3        On October 22, 2009, defendant entered a plea of guilty to two counts of predatory criminal
     sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)). The two counts alleged that
     defendant committed the charged offenses between 1998 and 2000. In exchange for his guilty
     plea to the two predatory criminal sexual assault of a child charges, the State filed a motion to
     nolle prosequi four other charges and recommended sentences of two consecutive terms of 12
     years’ imprisonment to be followed by two consecutive terms of 2 years’ mandatory
     supervised release (MSR). The State advised the court that defendant would receive credit for
     nine days spent in presentence custody and pay $6056 in costs. Defendant agreed to forfeit part
     of his $50,000 bond to pay the costs. The court accepted defendant’s plea and imposed the
     recommended sentences. The judgment awarded defendant nine days of presentence
     incarceration credit. A criminal cost sheet detailed the $6056 in costs, which included a $50
     “Court Systems Fee.” Application of defendant’s $50,000 bond resulted in a refund of
     $43,944.
¶4        On September 6, 2011, defendant filed a postconviction petition. After second-stage
     proceedings, the court dismissed defendant’s petition. On appeal, we vacated defendant’s $500
     sex crimes assessment, imposed two statutorily mandated $100 sexual assault fines (730 ILCS
     5/5-9-1.7(b)(1) (West 1998)), and remanded the cause with directions for the clerk to issue a
     $300 refund. People v. Scalise, 2015 IL App (3d) 130720.
¶5        On March 12, 2015, defendant filed a pro se petition for relief from judgment pursuant to
     section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 2014). Defendant
     argued that his plea was void because it did not include two mandatory sex crime fines, the
     clerk of the court imposed several unauthorized costs, and the court lacked authority to impose
     a four-year term of MSR. The State filed a motion to dismiss the petition. The court granted the
     State’s motion, finding the petition was untimely and the claims alleged were without merit.
     Defendant appeals. Defendant abandons these issues on appeal and argues only, and for the
     first time, that he is entitled to a statutory $5-per-day presentence incarceration credit. 725
     ILCS 5/110-14(a) (West 2014).

¶6                                           ANALYSIS
¶7       For the first time on appeal, defendant applies for the $5-per-day presentence incarceration
     credit. Defendant does not challenge the dismissal of his section 2-1401 petition, and therefore,
     this appeal is limited to the applicability of the $5-per-day credit. Defendant argues he is
     entitled to offset $45 of his $50 “court systems fine” with credit earned during his nine-day
     presentence incarceration. Defendant acknowledges that a 2005 amendment to section 110-14
     of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-14(b) (West 2006))
     renders the per diem credit unavailable to individuals incarcerated for predatory criminal
     sexual assault of a child, but he argues that application of this section would violate the


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     prohibition against ex post facto laws. See People v. Prince, 371 Ill. App. 3d 878, 880-81
     (2007). We find the ex post facto prohibition does not apply to subsection 110-14(b) because it
     is not a punitive statute and does not have a punitive effect.
¶8       The United States Constitution (U.S. Const., art. I, §§ 9, 10) and Illinois Constitution (Ill.
     Const. 1970, art. I, § 16) prohibit the enaction of laws that retroactively increase the
     punishment for a criminal act. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 208 (2009). A
     law that is retroactive and disadvantageous to a defendant is ex post facto. Id. at 208-09. A
     disadvantageous law “criminalizes an act innocent when performed, increases the punishment
     for an offense previously committed, or alters the rules of evidence making a conviction
     easier.” Id. at 209. The ex post facto prohibition only applies to punitive laws. See People v.
     Dalton, 406 Ill. App. 3d 158, 164 (2010) (finding ex post facto principles did not apply to the
     imposition of two fees but applied to the imposition of a fine); see also People v. Ruback, 2013
     IL App (3d) 110256, ¶ 48 (ex post facto principles prohibited the imposition of a $500 fine).
¶9       We first examine section 110-14 to determine if it is a punitive statute or possesses a
     punitive effect which would subject it to an ex post facto challenge. Section 110-14 was
     enacted as part of the Code and became effective January 1, 1964. At that time, the statute
     broadly provided that defendants held in presentence custody were to receive credit against
     their fines.
              “Any person incarcerated on a bailable offense who does not supply bail and against
              whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for
              each day so incarcerated prior to conviction except that in no case shall the amount so
              allowed or credited exceed the amount of the fine.” (Emphasis added.) Ill. Rev. Stat.
              1965, ch. 38, ¶ 110-14.
     In 1977, the legislature amended section 110-14 to state the credit is available “upon
     application of the defendant” and “[t]he clerk of the court shall notify the defendant in writing
     of this provision of the Act at the time he is convicted.” Pub. Act 80-666, § 1 (eff. Oct. 1, 1977)
     (amending Ill. Rev. Stat. 1975, ch. 38, ¶ 110-14). Senator Carroll described the amendment as
     a resolution to
              “The problem *** that most [defendants] are not aware of the provisions of this nor is it
              capable for the county clerks or the clerks of the circuit courts of the various counties to
              enforce the provisions of the bill as it now stands for they don’t always know at the
              time of trial who is on bail, et cetera. So this is a change in that to provide that the clerk
              shall notify the defendant in writing and then he will then make application based on
              that writing for the five dollar a day credit.” 80th Ill. Gen. Assem., Senate Proceedings,
              May 23, 1977, at 47-48 (statements of Senator Carroll).
     This written notice requirement was removed in 1994, but the “upon application” clause
     remained. Pub. Act 88-287, § 5 (eff. Jan. 1, 1994) (amending 725 ILCS 5/110-14). In 2005, the
     legislature added subsection 110-14(b) which made individuals convicted of certain sexual
     assaults ineligible for the credit. Pub. Act 93-699, § 5 (eff. Jan. 1, 2005) (adding 725 ILCS
     5/110-14(b)). Presently, section 110-14 of the Code states:
                  “(a) Any person incarcerated on a bailable offense who does not supply bail and
              against whom a fine is levied on conviction of such offense shall be allowed a credit of
              $5 for each day so incarcerated upon application of the defendant. However, in no case
              shall the amount so allowed or credited exceed the amount of the fine.


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                    (b) Subsection (a) does not apply to a person incarcerated for sexual assault as
               defined in paragraph (1) of subsection (a) of Section 5-9-1.7 of the Unified Code of
               Corrections.” (Emphasis added.) 725 ILCS 5/110-14 (West 2014).
¶ 10       Starting with the 1977 amendment, the legislature clearly indicated that the per diem credit
       only applies where it is sought by a defendant. Senator Carroll’s comment that “most
       [defendants] are not aware of the provisions” exemplifies the legislature’s intent to treat the
       credit as optional until a defendant makes an application. 80th Ill. Gen. Assem., Senate
       Proceedings, May 23, 1977, at 47-48 (statements of Senator Carroll). Importantly, the “upon
       application” language remained after the legislature removed the written notice requirement,
       thereby placing the burden to apply for the credit solely on defendant. In fact, it made it a
       defendant’s sole responsibility to even learn about the ability to apply for the credit.
¶ 11       Together, the plain language of and modifications to section 110-14 establish that it is not a
       punishment and has no punitive effect. Rather, this section confers a benefit to those
       defendants who actively seek to offset their fine. Because a defendant must make an
       “application” for this credit, it is not automatically a part of a criminal sentence. 725 ILCS
       5/110-14(a) (West 2014). Therefore, the retroactive preclusion of the per diem credit is not
       prohibited by ex post facto concerns.
¶ 12       Here, defendant applied for the per diem credit for the first time in his appellant’s brief,
       which was filed on November 23, 2016. At that time, subsection 110-14(b) made defendant
       ineligible for the credit because of his predatory criminal sexual assault of a child conviction.
       725 ILCS 5/110-14(b) (West 2014); 730 ILCS 5/5-9-1.7(a) (West 2014). Defendant is not
       entitled to the credit.
¶ 13       Defendant argues that Prince controls the outcome of this case. In Prince, the Fifth District
       found application of subsection 110-14(b) violated the prohibition against ex post facto laws.
       We are not bound by the Prince decision, and for the reasons that follow, we disagree with its
       holding. See In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 398 (1992) (appellate
       court is not bound to follow the decisions of other districts).
¶ 14       In 2004, the defendant in Prince pled guilty to two counts of predatory criminal sexual
       assault. Prince, 371 Ill. App. 3d at 879. As part of his sentence, the court ordered the defendant
       to pay a $100 sexual assault fine and a $100 domestic violence fine. Id. The court granted the
       defendant sentencing credit for 264 days of presentence custody but did not grant per diem
       credit against the defendant’s fines. Id. On appeal, the defendant applied for the per diem credit
       for the first time. Id. The State argued the defendant was ineligible for the credit under
       subsection 110-14(b) because he was incarcerated for a qualifying sexual assault. Id. The Fifth
       District found “a denial of the credit against the defendant’s fines would increase the
       punishment for a previously committed offense.” Id. at 881. The court reasoned:
               “That credit was a part of the equation that made up the overall punishment possible for
               the offense, and a denial of that credit now would alter that equation to the defendant’s
               detriment because it would increase the punishment possible for the defendant’s
               previously committed offense by denying the defendant the ability to use credit for
               time spent in custody prior to sentencing to offset the defendant’s fine. In this case, it
               would increase the defendant’s punishment by $200 more than the identical offense,
               with the identical fine and time spent in presentencing custody, would have been
               punishable at the time it was committed. That result is not permissible under ex post
               facto jurisprudence. See, e.g., People v. Delgado, 368 Ill. App. 3d 985, 994 (2006) (the

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               defendant was entitled to elect to be sentenced under the preamendment version of
               section 110-14); In re Hunt, 28 Tex. App. 361, 13 S.W. 145 (1890) (a statute reducing
               the rate per day allowed a county convict as credit on a fine is an ex post facto law if
               applied retroactively).” Prince, 371 Ill. App. 3d at 881.
¶ 15       Contrary to Prince, we find the per diem credit is not a part of defendant’s sentencing
       calculus, and therefore, its exclusion does not increase the available punishment. Respectfully,
       Prince overlooks the critical language in subsection 110-14(a) that requires a defendant to
       make an “application” for the credit. 725 ILCS 5/110-14(a) (West 2014). Absent an
       application of the defendant, the credit is never a factor in the sentence. Moreover, because the
       credit only applies “upon application of the defendant,” it does not, by itself, automatically
       decrease a defendant’s fine. Rather, defendant’s application for the credit decreases the
       penalty and serves as a benefit. Here, when defendant applied for the credit, over 7 years after
       his conviction and 11 years after the legislature made the credit unavailable to individuals
       convicted of sexual assault, he was no longer entitled to it. Pub. Act 93-699, § 5 (eff. Jan. 1,
       2005) (adding 725 ILCS 5/110-14(b)). In further support, we note the legislature has placed the
       burden on defendant to be cognizant of this statute and apply for the per diem credit as he
       desires. Supra ¶¶ 9-11. Had the pre-1977 statute been in effect, we would agree with Prince.
       That is, were the credit mandatory without any precondition, then we would agree that the
       change here would have an impermissible ex post facto effect.
¶ 16       As a potential benefit that is not automatically part of a defendant’s sentence, subsection
       110-14(b) is not barred by ex post facto concerns. Therefore, subsection 110-14(b) renders
       defendant ineligible to receive the per diem credit. Credit denied.

¶ 17                                       CONCLUSION
¶ 18      For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 19      Affirmed.

¶ 20       JUSTICE McDADE, dissenting.
¶ 21       I respectfully dissent from the majority’s analysis and its conclusion that section 110-14(b)
       is not subject to ex post facto prohibition because it is not punitive. Subsection 110-14(a)
       confers a statutorily mandated benefit to all defendants who apply for the $5-per-day credit. In
       People v. Caballero, 228 Ill. 2d 79, 83 (2008), our supreme court, citing People v. Woodard,
       175 Ill. 2d 435, 457-58 (1997), stated: “[T]he per diem monetary credit allowed upon
       application by the defendant under section 110-14[1] is mandatory, it cannot be waived and it
       can be raised for the first time on appeal.” The majority’s analysis in the instant case initially
       overemphasizes subsection (a) because subsection (b), by its plain language, prohibits a
       defendant from even applying for the credit. Scalise’s claim on appeal is that subsection (b) is,
       as to him, an ex post facto law.
¶ 22       I would find that subsection (b) is punitive. “The best indication of legislative intent is the
       statutory language, given its plain and ordinary meaning.” People v. Bonutti, 212 Ill. 2d 182,

          1
           Section 110-14 became 110-14(a) when the statute was amended in 2005 to add subsection
       110-14(b). Pub. Act 93-699, § 5 (eff. Jan. 1, 2005).

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       188 (2004) (citing Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994)). Subsection
       110-14(b) states: “[s]ubsection (a) does not apply to a person incarcerated for [specifically
       identified sexual offenses].” (Emphasis added.) 725 ILCS 5/110-14(b) (West 2014).
       Subsection (b) eliminates Scalise’s otherwise mandatory statutory right (Caballero, 228 Ill. 2d
       at 87; Woodard, 175 Ill. 2d at 457-58) to apply for and receive the $5-per-day credit. The plain
       language of subsection (b) establishes that its intent is unabashedly punitive—it expressly
       prohibits Scalise, who was convicted of a covered sexual offense, from even applying for the
       credit with no discernible rational basis.
¶ 23        The punitive effect of subsection (b) renders it ex post facto as applied to Scalise. The
       subsection retroactively denies his right to apply for the $5-per-day credit because his sexual
       assault offenses occurred more than five years before its addition to the statute. Prior to that
       enactment, Scalise, like every other criminal defendant, was entitled to offset his fines by
       application for the credit. Now, subsection (b) penalizes Scalise, who was convicted of one of
       the specified sexual offenses, by eliminating his right to apply for and receive the credit. 725
       ILCS 5/110-14(b) (West 2014). Effectively, this raises the potential fines that he is subject to
       because he cannot offset the amount of his fines with the otherwise mandatory $5-per-day
       credit. Prince, 371 Ill. App. 3d at 881. Subsection (b) cannot apply to Scalise.
¶ 24        I would further find that (1) because of the supreme court’s decision in Woodard and (2)
       because application of subsection 110-14(b) is ex post facto as to Scalise and (3) because the
       statutory claim made at any time and at any stage of the court proceedings, even an appeal in a
       postconviction proceeding may be considered as an “application of the defendant” (Caballero,
       228 Ill. 2d at 88) and (4) because, analogous to Caballero, Scalise applied for the credit for the
       first time on appeal from the dismissal of his section 2-1401 petition, his application for credit
       is not barred by principles of forfeiture or untimeliness. Therefore, I conclude and would find
       that Scalise is entitled to offset his fines by $45 based on $5-per-day credit for his nine days
       spent in presentence custody. 725 ILCS 5/110-14(a) (West 2014).




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