                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Lenoir, 2013 IL App (1st) 113615




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



District & No.             First District, Third Division
                           Docket No. 1-11-3615


Filed                      March 29, 2013


Held                       Although defendant’s sentencing and the determination of mandatory
(Note: This syllabus       supervised release were complicated by the fact that defendant was on
constitutes no part of     bond on a separate felony charge when he was arrested for the instant
the opinion of the court   offense, the appellate court upheld the three-year term of MSR imposed
but has been prepared      on defendant as a Class X offender, despite his contention that the instant
by the Reporter of         offense was only a Class 2 felony that was subject to a two-year term of
Decisions for the          MSR, since defendant was sentenced as a Class X offender because of his
convenience of the         background; however, his term was reduced by 309 days to reflect
reader.)
                           additional days of credit for presentence incarceration he was entitled to
                           as part of his plea bargain.


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CR-18925; the
Review                     Hon. Domenica Stephenson and the Hon. Matthew E. Coghlan, Judges,
                           presiding.



Judgment                   Affirmed as modified.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Todd T. McHenry, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Michelle Katz, and Janet C. Mahoney, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE PIERCE delivered the judgment of the court, with opinion.
                           Justices Sterba and Hyman concurred in the judgment and opinion.



                                             OPINION

¶1           This appeal involves two issues: (1) whether defendant, Milton Lenoir, received the
        benefit of his negotiated plea agreement calling for credit for time served in custody prior to
        entering his guilty plea, and; (2) whether, as a defendant eligible for sentencing as a Class
        X offender, the mandatory supervisory release term is that dictated by the underlying felony
        or the term mandated under the Class X sentencing statute (730 ILCS 5/5-4.5-95(b) (West
        2010)). For the following reasons, we affirm in part and pursuant to our authority under
        Illinois Supreme Court Rule 615(b)(4), modify and reduce defendant’s sentence to 6 years
        and 56 days’ imprisonment.

¶2                                         BACKGROUND
¶3          Defendant was on bond on a separate felony charge, No. 08 C6 60762, when he was
        arrested for the instant offense and subsequently charged with two counts of unlawful use or
        possession of a weapon by a felon and four counts of aggravated unlawful use of a weapon.
        On July 22, 2011, defendant pled guilty and was sentenced in No. 08 C6 60762 to 7 years’
        imprisonment with credit for 633 days of presentence custody.
¶4          On August 15, 2011, defendant pled guilty, in this case, to unlawful use or possession
        of a weapon by a felon. Judge Domenica Stephenson was advised of the terms of the
        negotiated plea agreement. Judge Stephenson informed defendant that the parties had agreed
        that, although the charge of unlawful use or possession of a weapon is a Class 2 felony,
        because of his background defendant would be sentenced as a Class X offender to seven
        years’ imprisonment followed by 3 years of mandatory supervised release (MSR). In
        addition, the court informed defendant that he would be required to pay fines and costs in the
        amount of $405 and would be given 309 days of presentence credit. Defendant indicated that
        this was his understanding of the agreement.
¶5          After defendant formally entered his plea of guilty, the court again explained to defendant
        that he was being sentenced as a Class X offender based on his background and that the


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     possible sentence was 6 to 30 years and a fine up to $25,000, as well as 3 years of MSR.
     Defendant indicated that he understood that he had the right to continue to plead not guilty
     and require the State to prove him guilty beyond a reasonable doubt. The court further
     explained to defendant that he would receive seven years’ imprisonment consecutive to the
     sentence he received in No. 08 CR 60762. The court then obtained defendant’s affirmance
     to the waiver of his trial rights.
¶6       A factual basis for the plea was provided and the court found that a factual basis for the
     plea existed. The court entered a finding of guilty of unlawful use or possession of a weapon
     by a felon and entered judgment on the finding. Defendant waived his right to a presentence
     investigation report and the court immediately moved to sentencing.
¶7       In aggravation, the State informed the court that defendant had nine prior felony
     convictions dating back to the late 1980s. Defendant offered nothing in mitigation. The court
     then sentenced defendant to 7 years’ imprisonment to be served at 50% followed by 3 years
     of MSR, 309 days time considered served, and $405 in fines and fees, to be served
     consecutive to the sentence imposed in No. 08 CR 60762. The court informed defendant of
     his appeal rights.
¶8       Sometime after he began serving his sentence, defendant was told by the Department of
     Corrections that he was not going to receive the agreed-upon 309 days’ credit because he was
     already receiving this credit against the sentenced imposed in No. 08 CR 60762. Not
     knowing the proper procedure, defendant filed a timely motion to withdraw his guilty plea
     and a motion to correct his mittimus. He alleged that he did not receive the credit for 309
     days in presentence custody which was agreed to in this case. Defendant claimed that
     between his two cases, this case and No. 08 C6 60762, he was entitled to 942 days credit:
     633 days he received in No. 08 C6 60762 plus 309 days he received in this case.
¶9       These motions were heard by Judge Matthew Coghlan. Defendant, pro se, explained that
     he had not filed a grievance or appeal with the Department of Corrections requesting that it
     recalculate his presentence credit and he filed both motions because he was not sure how to
     proceed. After the court reviewed defendant’s Department of Corrections calculation sheet
     and his court file, the following colloquy was had:
             “THE COURT: So you do not get double credit. You don’t get 309 on the first one,
         plus 633 on the second one.
             You pled guilty on July 22nd of 2011 on the case in front of Judge Panicchi [sic].
             DEFENDANT: Yes, sir.
             THE COURT: You were in custody already on this case when you did that.
             DEFENDANT: Yes.
             THE COURT: So you’re not going to get double credit for the time up to the 22nd.
         You already got credit for that.
             But then you pled guilty in this case on August 15th. So that would be an additional
         24 days.
             DEFENDANT: Okay.
             THE COURT: So you would get an aggregate credit of 657 days. That’s the 633 you

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got from Judge Panicchi [sic], plus the 24, for 657.
     DEFENDANT: Okay.
     THE COURT: If you wish, I will issue a corrected mittimus giving you 657 days of
aggregate credit reflecting that this case is consecutive to the other one.
     DEFENDANT: Okay.
     THE COURT: So you’ll get–because they don’t get counted twice. Do you
understand that?
     DEFENDANT: Right. I thought–because what I had thought, my understanding was,
is like when I copped out, it’s [sic] an order in there that said I get credit for the 309.
That’s what I thought when I took the plea. I thought I was going to get credit for 309
days. My out date is 2019 right now, but my understanding is that I would get that credit,
but I didn’t know.
     When I took the plea–
     THE COURT: Well, technically you got that credit, by some of it you were in
custody on the other one as well. So it’s not double time credit.
     DEFENDANT: I didn’t know that. Yeah, I didn’t know. I guess I didn’t understand
because Jeff told me something different, my lawyer, that I had at that time. He told me,
oh, you’re going to get this time. He said the 600 and you put that together. That was my
understanding of what he told me.
     Then I have a letter from him too saying that because I had wrote him and I asked
him why didn’t I get this 309 days. He said, well, you should get it. He said, if you want
me to, I can get it back in court. I told him I already filed it because I didn’t have no more
money to give to him. So that’s what I had thought. I didn’t know when I took the plea.
     THE COURT: Well, you have to make a decision right now. Do you want to proceed
on your petition to withdraw your plea, I will appoint a lawyer to represent you, and we
could go forward on that? I make no representations on whether or not I’ll allow you to
do that, allow you to withdraw your plea. You may not have a–this computation issue
with the Department of Corrections may not be a valid reason to allow you to withdraw
your plea.
     Or I’ll give you these extra 24 days of aggregate credit it’s called an issue a corrected
mitt and–
     DEFENDANT: I mean, it was a good plea. I mean, I just thought I would get that, so
I mean.
     THE COURT: Do you need time to think about what you want to do?
     DEFENDANT: No. I don’t want to stay in Stateville. I’m good. So the order was no
good for the 309 days?
     THE COURT: Well, it is, but some of those 309 days overlapped with the 600 days
that you got in the other case.
     DEFENDANT: Oh, okay.
     THE COURT: If they had both been in the same courtroom, it would have been

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          calculated how many days your were in custody straight time and then it’s called an
          aggregate credit on each one. You don’t get–it doesn’t get counted twice though. That’s
          the actual number of days you spent in custody.
               DEFENDANT: I’ll just withdraw them both. I’ll just withdraw them both, the days.
          I’ll just withdraw them both.
               THE COURT: I told you, I’ll give you the credit for the extra days, but it’s not going
          to be 309 days.
               DEFENDANT: I know.
               THE COURT: Having done that, do you wish to then withdraw your petition to
          withdraw your plea of guilty?
               DEFENDANT: Yes, I want to withdraw that motion. Not withdraw my plea.
          Withdraw the–
               THE COURT: The petition?
               DEFENDANT: Yeah. I’ll withdraw that.
               THE COURT: You’re sure?
               DEFENDANT: Yes, I’m positive.
               THE COURT: As I indicated, if you want to proceed on that, I will appoint a lawyer
          to represent you.
               DEFENDANT: Nah, it was a good plea.
               THE COURT: The defendant withdraws his petition to withdraw his plea. The
          defendant’s motion for a corrected mitt is granted. The defendant is given 657 days of
          aggregate credit. That’s as of the original date of sentencing August 15th. That’s nunc
          pro tunc of August 15, 2011.
               So the original sentence will stand, which was seven years in the Illinois Department
          of Corrections on Count 1 consecutive to 08-C6-60762, three years of mandatory
          supervised release, but it’s 657 days of aggregate credit.”
       Defendant filed a timely notice of appeal.

¶ 10                                        ANALYSIS
¶ 11       Defendant argues that he is entitled to the benefit of his fully negotiated plea, which
       provided that he would receive 309 days’ credit to be applied against his 7-year sentence. The
       State argues that defendant is estopped from now arguing that he is entitled to 309 days’
       credit because he was given the opportunity to withdraw his guilty plea in the trial court, and
       made a reasoned decision to persist in this plea of guilty, despite the fact that one term of his
       plea could not be complied with.
¶ 12       At the outset, we note there is no dispute that the State and defendant agreed that, as a
       term of the plea agreement in this case, defendant would receive 309 days’ credit for time
       served against the 7-year sentence imposed in this case and that this sentence would run
       consecutive to the 7-year sentence he received in No. 08-C6-60762. The parties are also in
       agreement that defendant was credited with the same 309 days in No. 08-C6-60762, which

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       results in defendant receiving double credit for time served, which is impermissible. See
       People v. Latona, 184 Ill. 2d 260, 271 (1998) (“to the extent that an offender sentenced to
       consecutive sentences had been incarcerated prior thereto on more than one offense
       simultaneously, he should be given credit only once for actual days served”). The sentencing
       judge, Judge Stephenson, clearly was not advised that defendant had already been credited
       with the 309 days in the earlier case. We are confident that had Judge Stephenson been
       accurately informed, defendant would have been advised he could not receive double credit
       for his time served in custody prior to his plea. In any event, the parties disagree, however,
       on how to correct this error.
¶ 13       The real question here is whether defendant can persist in his plea of guilty as he has
       clearly done and still demand to receive the benefit of the bargain. “Our supreme court has
       declared that plea agreements, and especially negotiated plea agreements for fully negotiated
       pleas where the parties have agreed on the appropriate sentence, are generally governed by
       contract law.” People v. Donelson, 2011 IL App (1st) 092594, ¶ 14 (citing People v. Absher,
       242 Ill. 2d 77, 90 (2011)). Plea agreements are contracts between the State and the defendant,
       and the circuit court is not a party to the agreement. People v. Smith, 406 Ill. App. 3d 879,
       888-89 (2010). The supreme court explained in People v. Whitfield, 217 Ill. 2d 177, 183-84
       (2005), that “[w]hen seeking relief from a guilty plea, either directly or collaterally, there are
       two separate, though closely related, constitutional challenges that may be made: (1) that the
       plea of guilty was not made voluntarily and with full knowledge of the consequences, and
       (2) that defendant did not receive the benefit of the bargain he made with the State when he
       pled guilty.” Due process mandates that “when a plea rests in any significant degree on a
       promise or agreement of the prosecutor, so that it can be said to be part of the inducement
       or consideration, such promise must be fulfilled.” (Emphasis omitted.) (Internal quotation
       marks omitted.) Id. at 185. Accordingly, we find the 309-day credit was consideration for the
       plea of guilty such that defendant is entitled to the benefit of the bargain in this case;
       defendant is entitled to the 309 days’ credit he was promised. See People v. Clark, 2011 IL
       App (2d) 091116.
¶ 14       The State insists that defendant is not entitled to any relief because he persisted in his
       plea of guilty and is now estopped from arguing that the State keep its part of the agreement.
       Indeed, Judge Coghlan thoroughly advised defendant of the fact he was getting credit for the
       309 days but the credit was being applied to a different sentence imposed on a different case
       and defendant indicated that he understood Judge Coghlan’s accurate description of his
       situation and clearly stated he did not seek to vacate his plea of guilty. However, we do not
       find that because defendant indicated that he understood the issue as explained by the court
       subsequent to his sentencing that he thereby waived or is estopped from insisting on the State
       keeping its part of the agreement. See Whitfield, 217 Ill. 2d 177; People v. Snyder, 2011 IL
       111382, ¶ 30.
¶ 15       Furthermore, the State argues that defendant received the benefit of the bargain he made
       with the State when he pled guilty because his actions at the hearing on his motions to
       withdraw his guilty plea and to correct the mittimus amounted to him agreeing to the plea
       agreement, without the 309 days’ credit. We reject this argument.
¶ 16       Although Judge Coghlan gave defendant a choice to either withdraw his motion to vacate

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       his guilty plea or to grant his motion to withdraw his plea and appoint counsel, he also
       indicated that there were no assurances as to what would follow. This Hobson’s choice put
       a pro se defendant at risk of losing what the State previously agreed to provide, along with
       the potential that a different sentence might be imposed following a subsequent trial or plea
       of guilty.
¶ 17       Defendant argues that Supreme Court Rule 615(b)(4) allows this court to enforce the
       bargain and reduce defendant’s sentence by 309 days. Illinois Supreme Court Rule 615(b)(4)
       gives reviewing courts the power to reduce a sentence; however, that power should be used
       carefully and sparingly. People v. Alexander, 239 Ill. 2d 205, 212 (2010). In response, the
       State argues the appropriate remedy is to remand to the trial court, because this court does
       not have the authority to resentence defendant, recognizing, or more appropriately admitting,
       that on remand the court would have the ability to closely approximate the intended sentence
       because the authorized sentence range is between 6 and 30 years. Thus, the State indirectly
       suggests its agreement with defendant’s argument that reducing the base 7-year sentence by
       the 309 days’ credit, the agreed but unavailable sentence would be closely approximated.
¶ 18       Defendant advances the holdings in People v. Clark, 2011 IL App (2d) 091116, and
       People ex rel. Ryan v. Roe, 201 Ill. 2d 552 (2002), in support of his position that this court
       can reduce his sentence by 309 days, the amount of presentence credit he was promised. In
       Clark, the defendant appealed from the denial of his motion to withdraw his guilty plea. This
       court reversed the trial court finding that the record showed that the State had “represented
       in open court that it had been agreed that defendant was entitled not only to 339 days’ credit
       toward his sentence for residential burglary, but also to 311 days’ credit toward his sentence
       for attempted armed robbery.” Clark, 2011 IL App (2d) 091116, ¶ 5. This court reasoned that
       because the sentences were consecutive, “the most natural interpretation of the prosecutor’s
       description of the agreement is that defendant would serve a prison term of 8 years, less 339
       days, for residential burglary, followed by a prison term of 8 years, less 311 days, for
       attempted armed robbery.” Id. In addition, we found that the trial court ratified the agreement
       as stated by the prosecutor, never clarifying that defendant would, in fact, receive a total
       credit of only 339 days–not 650–toward his aggregate sentence. Id. ¶ 6. We noted that had
       defendant actually received the 311 days credit toward his sentence, he would have also
       earned an additional 311 days of good-conduct credit. As such, we reduced Clark’s sentence
       for attempted armed robbery by 622 days to 6 years and 108 days. Id. ¶ 11-12.
¶ 19       In People ex rel. Ryan v. Roe, 201 Ill. 2d 552 (2002), the defendant pled guilty to a sex
       offense and was sentenced, based on a negotiated plea agreement, to a term of eight years in
       prison. The parties and the sentencing judge contemplated that the defendant would serve his
       sentence at 50% rather than at 85% as required under the truth-in-sentencing statute. See 730
       ILCS 5/3-6-3(a)(2)(ii) (West 2000). The trial judge even noted in the defendant’s sentencing
       order that the sentence was not subject to the statute. The State later sought to enforce the
       reduced credit under the truth-in-sentencing statute, which would require the defendant to
       serve his sentence at 85%. Roe, 201 Ill. 2d at 556.
¶ 20       Our supreme court agreed with the State that the statute required defendant to serve his
       sentence at 85% and that the agreed-upon sentence violated Illinois law. As a result, the court
       ordered the trial court to issue an amended sentencing order to remove the “not subject to”

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       language. In reaching its decision, however, the supreme court recognized that neither party
       contemplated the application of the truth-in-sentencing statute when negotiating toward a
       guilty plea. Consequently, the court exercised its authority under Illinois Supreme Court Rule
       615(b)(4), and the court reduced the defendant’s sentence to a six-year sentence, resulting
       in actual service closer to the four years to which he had agreed. Roe, 201 Ill. 2d at 556-58.
¶ 21       Contrary to the States’s argument, Supreme Court Rule 615(b)(4) provides authorization
       for us to exercise our authority to modify defendant’s sentence, and enforce the benefit of the
       bargain by reducing defendant’s sentence by 309 days. Accordingly, we reduce defendant’s
       7-year sentence by 309 days to 6 years and 56 days imprisonment. We make no correction
       to the previously corrected mittimus granting defendant 657 days of aggregate credit.
¶ 22       Next, defendant argues that his MSR term should be reduced to two years because the
       proper term of MSR for a defendant subject to mandatory Class X sentencing is the term
       applicable to the underlying felony, in this case two years (a Class 2 felony), and not the
       three-year term for Class X felonies.
¶ 23       Section 5-5-3(c)(8) of the Unified Code of Corrections (Unified Code) provides that a
       defendant, over the age of 21, who is convicted of a Class 1 or Class 2 felony shall be
       sentenced as a Class X offender if he has prior convictions for two Class 2 or higher class
       felonies arising out of a different series of acts. 730 ILCS 5/5-4.5-95(b) (West 2010). The
       MSR term attached to a Class X sentence is three years. 730 ILCS 5/5-8-1(d)(1) (West 2010).
¶ 24       Defendant acknowledges that four districts of the appellate court have rejected the same
       argument he raises here. See People v. Lampley, 405 Ill. App. 3d 1 (1st Dist. 2010); People
       v. Lee, 397 Ill. App. 3d 1067, 1068-73 (4th Dist. 2010); People v. McKinney, 399 Ill. App.
       3d 77, 79-83 (2d Dist. 2010); People v. Watkins, 387 Ill. App. 3d 764, 766-67 (3d Dist.
       2009). However, defendant argues that those decisions should not be followed as they were
       wrongly decided. Defendant argues that our supreme court’s decision in People v. Pullen,
       192 Ill. 2d 36 (2000), dictates a different result. We disagree.
¶ 25       In Pullen, the court considered the issue of the maximum aggregate length of consecutive
       sentences a court could impose under section 5-8-4(c)(2) of the Unified Code (730 ILCS 5/5-
       8-4(c)(2) (West 1994)). The Pullen issue differs from the issue presented here. We therefore
       find no reason to depart from our earlier decisions in Lampley, Lee, McKinney and Watkins
       and find that the three-year term of MSR imposed on defendant as a Class X offender was
       proper.

¶ 26                                      CONCLUSION
¶ 27       For the foregoing reasons, we modify the sentencing order and reduce defendant’s
       sentence by 309 days to 6 years, 56 days’ imprisonment. The judgment of the circuit court
       previously granting defendant 657 days of aggregate credit remains undisturbed. The
       judgment of the circuit court is otherwise affirmed.

¶ 28      Affirmed as modified.



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