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                                Appellate Court                            Date: 2016.10.20
                                                                           15:03:24 -05'00'




                    People v. Jones, 2016 IL App (1st) 142582



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



District & No.     First District, Second Division
                   Docket No. 1-14-2582



Filed              August 2, 2016
Rehearing denied   August 16, 2016


Decision Under     Appeal from the Circuit Court of Cook County, No. 13-CR-18024; the
Review             Hon. Mauricio Araujo, and the Hon. Dennis J. Porter, Judges,
                   presiding.



Judgment           Affirmed in part and vacated in part; mittimus corrected.



Counsel on         Michael J. Pelletier and Robert Hirschhorn, both of State Appellate
Appeal             Defender’s Office, of Chicago, for appellant.

                   Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Miles J. Keleher, and Lisanne P. Pugliese, Assistant State’s Attorneys,
                   of counsel), for the People.



Panel              PRESIDING JUSTICE PIERCE delivered the judgment of the court,
                   with opinion.
                   Justices Neville and Simon concurred in the judgment and opinion.
                                             OPINION

¶1        Following a bench trial, defendant Kenneth Jones was found guilty of retail theft and
     sentenced to three years in prison. The only issue on appeal is whether an order exonerating
     defendant’s bond nunc pro tunc was effective to credit defendant with additional presentence
     custody credit pursuant to section 5-4.5-100(b) of the Unified Code of Corrections (730 ILCS
     5/5-4.5-100(b) (West 2012)).
¶2        Defendant’s arrest and prosecution in this case arose from an August 24, 2013, incident
     during which certain merchandise was taken from a store without payment. The record
     reflects that defendant was taken into custody on August 24, 2013, and released on bond on
     August 26, 2013.
¶3        On October 17, 2013, defendant surrendered on a charge that arose before this offense
     and was taken into custody. On November 6, 2013, defendant appeared before Judge
     Mauricio Araujo on this offense. Defense counsel informed the court that defendant was
     arrested on October 17, 2013, “for something that occurred prior to him being arrested on
     this.” Counsel then stated: “We’re asking to exonerate his bond nunc pro tunc to October
     17th so that he gets credit on this case for the time he’s in custody.” The trial court asked the
     State for a response, and the State indicated that there was “no problem” because the court
     was entering a “no bond order.” The court granted the motion to exonerate bond, nunc pro
     tunc, to October 17, 2013.
¶4        At trial, loss prevention specialist Philip Bane testified that he observed, on a store
     security camera, the defendant retrieve a bag of fish, relocate to another aisle and remove two
     grocery bags from his pockets. Defendant then placed the fish in a bag, put the bag in a cart,
     placed a package of paper towels over the bag, and proceeded to the front of the store.
¶5        When defendant was 50 feet away from the entrance and past “all points of sale,” Bane
     left his office and placed himself between defendant and the door. Defendant left the cart and
     the paper towels, took the bag of fish and walked toward the doors. Bane approached
     defendant, identified himself and asked defendant to drop the bag and leave. Defendant
     pushed Bane and left. Bane grabbed defendant and tackled him to the ground. The State then
     published, without objection, certain video footage from the store’s security system to the
     court.
¶6        Defendant was ultimately found guilty of retail theft. On July 14, 2014, Judge Dennis
     Porter sentenced defendant to three years in prison, imposed $409 in fines and fees and
     allowed defendant a credit of $80 against the fines. The trial court credited defendant with
     246 days of presentence custody. The record indicates the presentence custody credit was
     calculated from “November 13, 2014 [sic] to July 14, 2014” plus the three days defendant
     was initially in custody before posting bond (August 24, 2013, to August 26, 2013). The
     parties agree, and we concur, that the mittimus incorrectly reflects the proper presentence in
     custody credit the defendant is entitled to but differ on the proper credit.
¶7        On appeal, defendant contends that his mittimus must be corrected to reflect 273 days of
     presentence custody credit: 3 days for August 24, 2013, through August 26, 2013, and 270
     days for October 17, 2013, through July 13, 2014. See People v. Alvarez, 2012 IL App (1st)
     092119, ¶ 71 (presentence custody calculation includes the days that the defendant spends in
     custody prior to the day he is sentenced).


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¶8         The State responds that defendant is entitled to 253 days of presentence custody credit: 3
       days for August 24, 2013, through August 26, 2013, and 250 days for November 6, 2013,
       through July 13, 2014. The State argues that the trial court did not have the authority to
       exonerate defendant’s bond nunc pro tunc to October 17, 2013, because the purpose of the
       order was outside the scope of the nunc pro tunc procedure.
¶9         Initially, we note that the State has waived any argument relating to the nunc pro tunc
       order because it failed to object to the entry of the order before the trial court. See People v.
       Jones, 364 Ill. App. 3d 740, 748 (2006) (the failure to object before the trial court and to raise
       the issue in a posttrial motion waives that issue for review). However, because defendant’s
       argument on appeal rests upon the nunc pro tunc order, the propriety of the entry of that
       order has been placed before this court. For the following reasons we conclude that the trial
       court improperly exonerated defendant’s bail, nunc pro tunc, to October 17, 2013, and
       therefore, vacate that order. See Ill. S. Ct. R. 615(b)(2) (on appeal a reviewing court may “set
       aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the
       judgment or order from which the appeal is taken”).
¶ 10       Defendant’s argument that the nunc pro tunc order entered on November 6 gave him
       additional in custody credit on this charge cannot be accepted, even where the State did not
       object and presumably intended that the defendant would be considered in custody on this
       charge as of October 17. The court was in error when it entered the nunc pro tunc order of
       November 6 for the simple reason that there was no order entered on October 17 that omitted
       something the court previously did or that needed correction or clarification.
¶ 11       “[T]he use of nunc pro tunc orders or judgments is limited to incorporating into the
       record something which was actually previously done by the court but inadvertently omitted
       by clerical error.” People v. Melchor, 226 Ill. 2d 24, 32 (2007); see also Harreld v. Butler,
       2014 IL App (2d) 131065, ¶ 13 (“ ‘A nunc pro tunc order is an entry now for something
       previously done, made to make the record speak now for what was actually done then.’ ”
       (Emphasis in original.) (quoting Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App. 3d
       1051, 1055 (1979))). Because a nunc pro tunc amendment may reflect only what the trial
       court actually did, it must be based on some note, memorandum, or other memorial in the
       court record. Harreld, 2014 IL App (2d) 131065, ¶ 13.
¶ 12       The evidence in the record “must clearly show” that the order being modified failed to
       conform to the decree actually made by the trial court. McCloud v. Rodriquez, 304 Ill. App.
       3d 652, 659 (1999). An order entered nunc pro tunc may not supply omitted judicial action or
       correct judicial errors under the pretext of correcting clerical orders. Melchor, 226 Ill. 2d at
       32-33. Whether an order satisfies the legal criteria for a nunc pro tunc order is reviewed
       de novo. In re Aaron R., 387 Ill. App. 3d 1130, 1139 (2009).
¶ 13       While defendant was on bond in this case he decided to surrender on another unrelated
       charge on October 17, 2013. He was not brought before any court on this charge nor did he
       make any attempt to exonerate his bond until November 6, 2013. Defendant wants credit
       against this sentence for the time he was in custody on the unrelated charge (starting on
       October 17), claiming a nunc pro tunc order entitles him to the credit even though he did not
       surrender his bond in this case until he appeared before Judge Araujo on November 6.
¶ 14       In People v. Arnhold, 115 Ill. 2d 379, 383 (1987) our supreme court, in reviewing the
       speedy-trial statute, addressed the question of when custody begins where a defendant on
       bond is arrested and incarcerated for a separate offense. “We conclude that a defendant who

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       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.” Id. The court emphasized that “we will not ignore the reality of the distinction
       between being in custody and being on bond. In the case at bar defendant was arrested on
       unrelated charges while he was out on bond. At that point, although he was physically in
       custody, his bond on the initial charges remained in effect.” Id.
¶ 15        After Arnhold, the supreme court again stated that a defendant arrested while on bond
       remains on bond until the bond is exonerated, at which point the defendant will be considered
       to be in simultaneous custody on both charges. People v. Robinson, 172 Ill. 2d 452, 458-59
       (1996). The court also instructed that “it is the legislature, and not this court, which defines
       sentencing policy. It is this court’s responsibility to interpret and apply statutes in the manner
       in which they are written. Indeed, if this court were to ignore the clear provisions of a statute
       in favor of what it believed to constitute proper policy, this court would be improperly
       engaging in judicial lawmaking.” Id. at 462.
¶ 16        Under the established precedent articulated in Arnhold and Robinson, defendant was on
       bond in this case when he appeared in court and surrendered his bond on November 6, 2013.
       He took no action to surrender or exonerate his bond at the time he surrendered on the other
       charge on October 17. It was not until November 6, after he surrendered his bond, that he
       was held in simultaneous custody on both charges. Arnhold, 115 Ill. 2d at 383; Robinson, 172
       Ill. 2d at 458-59.
¶ 17        In this case, the trial court’s November 6, 2013, order exonerating defendant’s bond nunc
       pro tunc to October 17, 2013, was improper because the record does not reflect any action by
       any court on October 17, 2013. In other words, notwithstanding the intentions of the defense
       and the State, because a nunc pro tunc order may reflect only what the court actually did on a
       prior date but was omitted by clerical error (see Harreld, 2014 IL App (2d) 130165, ¶ 13),
       the November 6, 2013, order exceeded the scope of a nunc pro tunc order by attempting to
       supply judicial action, i.e., the exoneration of defendant’s bond on an earlier date, that never
       occurred. See Melchor, 226 Ill. 2d at 32-33. Therefore, we find that the November 6, 2013,
       order was an improper use of the nunc pro tunc procedure (see In re Aaron R., 387 Ill. App.
       3d at 1139-40), and must be vacated. Ill. S. Ct. R. 615(a). Giving effect to the November 6
       order would effectively give the circuit court, the defendant and the State the power to
       increase the in custody credit beyond the parameters set by the legislature under section
       5-4.5-100(b) (730 ILCS 5/5-4.5-100(b) (West 2012)).
¶ 18        The legislature has enacted a comprehensive statute that deals with the calculation of the
       term of imprisonment and the grant of credits for the number of days in custody prior to
       sentencing. 730 ILCS 5/5-4.5-100 (West 2012). Under section 5-4.5-100(b), the legislature
       grants a defendant credit for “the number of days spent in custody as a result of the offense
       for which the sentence was imposed.” 730 ILCS 5/5-4.5-100(b) (West 2012). There is no
       provision that allows for a person on bond to receive credit for the time he is in custody on a
       separate charge. Under Arnhold and Robinson, it is settled law that a defendant arrested while
       on bond remains on bond until the bond is exonerated, withdrawn or surrendered. The
       legislature has not amended the Code of Corrections in response to either Arnhold or
       Robinson to grant in custody credit under the circumstances presented in this case, and we do
       not have the authority to judicially sanction the credit defendant seeks.


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¶ 19       Here, defendant was in custody from August 24, 2013, until August 26, 2013. He
       remained free on bond until he surrendered on a different charge on October 17, 2013. He
       moved to exonerate his bond on November 6, 2013, and he was sentenced on July 14, 2014.
       For credit purposes, he was in custody on this charge from August 24, 2013, until August 26,
       2013 and from November 6, 2013, through the day of sentencing. He is therefore entitled to
       253 days of presentence custody credit. Accordingly, pursuant to Rule 615(b)(1) and our
       ability to correct a mittimus without remand (People v. Rivera, 378 Ill. App. 3d 896, 900
       (2008)), we correct the mittimus to reflect a total of 253 days of presentence in custody
       credit.
¶ 20       For the foregoing reasons, we correct the mittimus to reflect a presentence in custody
       credit of 253 days.

¶ 21      Affirmed in part and vacated in part; mittimus corrected.




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