                              Illinois Official Reports

                                     Appellate Court



                          People v. Smith, 2014 IL App (3d) 130548



Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  JASON E. SMITH, Defendant-Appellant.




District & No.           Third District
                         Docket No. 3-13-0548



Filed                    June 23, 2014



Held                       Where the trial court granted defendant’s request to be released to
(Note: This syllabus home confinement on a bond pending the conclusion of his appeal
constitutes no part of the from his convictions on two counts of aggravated DUI and one count
opinion of the court but of misdemeanor DUI, his motion for sentencing credit for the time he
has been prepared by the spent released on bond was properly denied, since the home
Reporter of Decisions confinement did not constitute custody for which sentencing credit
for the convenience of could be granted.
the reader.)




Decision Under           Appeal from the Circuit Court of Grundy County, No. 09-CF-189; the
Review                   Hon. Lance R. Peterson, Judge, presiding.




Judgment                 Affirmed.
     Counsel on               Jeffery J. Tomczak (argued), of Law Office of Jeff Tomczak, of Joliet,
     Appeal                   for appellant.

                              Jason Helland, State’s Attorney, of Morris (Mark A. Austill (argued),
                              of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                              People.




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




                                               OPINION

¶1         The State charged and convicted the defendant, Jason Smith, with two counts of
       felonious aggravated driving under the influence (625 ILCS 5/11-501(a)(4), (a)(5), (d)(1)(C),
       (d)(2)(F) (West 2008)) and one count of misdemeanor driving under the influence (625 ILCS
       5/11-501(a)(6) (West 2008)). The trial court found the counts merged into the most serious
       offense and sentenced defendant to three years’ incarceration. The court released defendant
       on bond pending the resolution of his direct appeal. This court affirmed defendant’s
       conviction and sentence. People v. Smith, 2013 IL App (3d) 120149-U. Thereafter, defendant
       moved for sentencing credit for the time he spent released pending the conclusion of his
       appeal. Defendant claimed that the conditions of his release entitled him to day-for-day credit
       against his three-year sentence of incarceration. The trial court denied defendant’s motion
       and remanded him to the custody of the Illinois Department of Corrections. Defendant
       appeals that ruling, claiming the trial court erred when finding his time spent released on
       bond pending appeal did not entitle him to credit against his sentence of incarceration.

¶2                                          BACKGROUND
¶3         The facts of this matter are not in dispute. Witnesses testified that they observed
       defendant traveling at approximately 90 miles per hour on Interstate 80 at 5:30 a.m. in
       December of 2009. After swerving from the shoulder toward the left-hand lane, defendant’s
       vehicle collided with another, forcing the other vehicle into a ditch. An emergency room
       physician treated defendant following the accident, collecting blood in the process. The
       blood, collected at 6:43 a.m., indicated a blood alcohol content of .067. Urine collected at
       7:40 a.m. following the accident tested positive for cannabis, amphetamines, and
       phenylpropanol.
¶4         A jury convicted the defendant in January of 2011 of driving under the influence (625
       ILCS 5/11-501(a)(4), (a)(5) (West 2008)) and sentencing took place in October of 2011. On
       October 20, 2011, the trial court sentenced defendant to three years’ incarceration. The State

                                                  -2-
       took defendant into custody on October 27, 2011. Defendant filed a timely motion to
       reconsider sentence, as well as a motion for release pending the conclusion of his appeal. The
       trial court denied defendant’s motion to reconsider sentence, but ultimately granted
       defendant’s motion for release.
¶5          The order granting defendant’s motion for release states as follows:
                   “Standard conditions of bond apply except that the Defendant is allowed to travel
               to Wisconsin and Indiana for Work/Apprenticeship Program only.
                   Special Conditions of Appellate Bond:
                   (1) Defendant is on home confinement and may leave only for Work/
               Apprenticeship Program.
                   (2) Defendant must maintain a SCRAM/GPS monitoring bracelet at all times, to
               be monitored by the Grundy County Probation Department.
                   (3) Defendant is to consume no alcohol.
                   (4) Defendant is not permitted to drive a motor vehicle.
                   (5) Defendant is to remain enrolled in the Apprenticeship Program. If he is no
               longer enrolled in the Apprenticeship Program he is to notify the State’s Attorney’s
               Office or Probation Department within 48 hours of the disenrollment.
                   (6) Defendant will reside at 1315 Susan Circle, Morris, IL 60450.
                   Bond is set in the amount of $30,000.00, 10% to apply.”
¶6          Upon learning that the probation department did not have the ability to monitor defendant
       as directed, the trial court modified its order, noting defendant “is to be at his residence from
       7 pm Mon to 4am Tues, 7 pm Tues to 4 am Wed, 7 pm Wed to 4 am Thurs, 7 pm Thur to 4
       am Fri and 7 pm Fri to 4 am Mon. SCRAM to be monitored by the Traffic School for
       behavior change.”
¶7          On May 14, 2013, this court affirmed defendant’s conviction and sentence. Smith, 2013
       IL App (3d) 120149-U. Thereafter, defendant filed a motion to amend the mittimus to reflect
       credit for “time served pursuant to 730 ILCS 5/4-4.5-100.” In his motion, defendant argued
       he was entitled to credit against his sentence for each day that he was released on the appeal
       bond. The trial court denied defendant’s motion on June 21, 2013. Defendant filed a motion
       to reconsider, which the trial court denied via minute order on July 9, 2013, and written order
       on July 11, 2013. Defendant filed his notice of appeal on July 24, 2013. This appeal
       followed.

¶8                                             ANALYSIS
¶9         Defendant argues that the trial court erred in “refusing to give defendant credit for his
       time spent in home confinement on appellate bond.” Defendant’s argument is based on his
       interpretation of section 5-4.5-100 of the Unified Code of Corrections (the Code) (730 ILCS
       5/5-4.5-100 (West 2012)), as well as his analysis of two supreme court cases: People v.
       Beachem, 229 Ill. 2d 237 (2008), and People v. Ramos, 138 Ill. 2d 152 (1990). As the
       resolution of this appeal requires us to interpret the language of the sentencing credit statute,
       our review is de novo. People v. Beachem, 229 Ill. 2d at 243.
¶ 10       Section 5-4.5-100 of the Code became effective on July 1, 2009. See Pub. Act 95-1052
       (eff. July 1, 2009) (repealing 730 ILCS 5/5-8-7 and adding 730 ILCS 5/5-4.5-100). As such,


                                                   -3-
       it has been effective from five months prior to defendant committing this crime until today.
       The statute has been amended twice since its inception. See Pub. Act 96-1000 (eff. July 2,
       2010); Pub. Act 97-697 (eff. June 22, 2012).
¶ 11       In December of 2009, when defendant committed this crime, section 5-4.5-100 stated as
       follows:
                   “(a) COMMENCEMENT. A sentence of imprisonment shall commence on the
               date on which the offender is received by the Department or the institution at which
               the sentence is to be served.
                   (b) CREDIT; TIME IN CUSTODY; SAME CHARGE. The offender shall be
               given credit on the determinate sentence or maximum term and the minimum period
               of imprisonment for time spent in custody as a result of the offense for which the
               sentence was imposed, at the rate specified in Section 3-6-3 (730 ILCS 5/3-6-3).
               Except when prohibited by subsection (d), the trial court may give credit to the
               defendant for time spent in home detention, or when the defendant has been confined
               for psychiatric or substance abuse treatment prior to judgment, if the court finds that
               the detention or confinement was custodial.” 730 ILCS 5/5-4.5-100 (West 2008).
¶ 12       The 2010 amendments to the statute did not significantly change the wording relevant to
       this appeal. See Pub. Act 96-1000 (eff. July 2, 2010).
¶ 13       The most recent amendments, however, which became effective June 22, 2012, changed
       the statute as follows:
                   “(b) CREDIT; TIME IN CUSTODY; SAME CHARGE. Except as set forth in
               subsection (e), the offender shall be given credit on the determinate sentence or
               maximum term and the minimum period of imprisonment for the number of days
               time spent in custody as a result of the offense for which the sentence was imposed.
               *** [T]he trial court shall may give credit to the defendant for time spent in home
               detention on the same sentencing terms as incarceration as provided in Section
               5-8A-3 (730 ILCS 5/5-8A-3).” Pub. Act 97-697 (eff. June 22, 2012).
¶ 14       Defendant argues that the legislature’s latest amendment evinces its long held belief that
       defendants released under the condition of home confinement are entitled to the same credit
       for time served as those sitting in a county jail who could not secure their release. As noted
       above, to further support his contention that his release pending appeal equates to custody
       under the Code, defendant cites to Ramos and Beachem. We find both cases support
       affirmation of the trial court’s order.

¶ 15                                             A. Ramos
¶ 16       In Ramos, the State charged defendant with residential burglary. Ramos, 138 Ill. 2d at
       153. Following his arrest, defendant posted bond and was released. A condition of the bond
       included home detention. Id. Defendant pled guilty to the offense, and the trial court
       sentenced him to four years’ imprisonment. Id. Defendant moved, pursuant to section
       5-8-7(b) of the Code (Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-8-7(b)), for a finding that he was
       entitled to credit against his sentence for time spent in pretrial release, which carried with it
       the condition of home confinement. Ramos, 138 Ill. 2d at 153.
¶ 17       The trial court denied defendant’s motion, finding he was not entitled to credit for time
       released on bond prior to his sentencing. Id. This court reversed the trial court’s decision,

                                                   -4-
       noting that defendant “was permitted to leave his confinement only with the consent of the
       court or his probation officer. *** Moreover, [defendant] was not permitted to work or to
       attend school. Though it may not have amounted to imprisonment, Ramos’ home detention
       was not far from it.” People v. Ramos, 181 Ill. App. 3d 1062, 1065 (1989). Therefore, this
       court concluded “that during his home detention the defendant was in custody for purposes of
       sentence credit, and the circuit court erred in holding otherwise.” Id. Our supreme court
       disagreed.
                    “The State contends that the phrase ‘time spent in custody,’ as used in section
               5-8-7(b), does not include the period of time during which a defendant is released on
               bond, regardless of the restrictions that might be imposed as conditions of release.
               Relying on this court’s decision in People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d
               91, the State argues that the legislature intended in section 5-8-7(b) to distinguish
               institutional custody from release on bond and to allow sentencing credit for only the
               former. The State maintains that defendant was released from institutional custody
               when he was admitted to bond and that home detention was merely a condition of
               release and did not constitute custody within the meaning of the statute. We agree.”
               Ramos, 138 Ill. 2d at 156-57.
¶ 18       The Ramos court then recapped its holding in Morrison, noting that the Morrison court
       ruled “that the period of pretrial release was not ‘time spent in custody’ within the
       contemplation of section 5-8-7(b).” Id. at 157. The Morrison court, as recalled by the Ramos
       court, made that finding despite acknowledging that “the term ‘custody’ has been used in
       various contexts to denote both confinement in a penal institution [citation] and time spent
       outside an institution [citation]. The court believed, however, that for purposes of section
       5-8-7(b) the inmate’s pretrial release on bond was not ‘custody’ within the meaning of the
       statute.” Id.
¶ 19       The Ramos court stated:
                    “Home confinement, though restrictive, differs in several important respects from
               confinement in a jail or prison. An offender who is detained at home is not subject to
               the regimentation of penal institutions and, once inside the residence, enjoys
               unrestricted freedom of activity, movement, and association. Furthermore, a
               defendant confined to his residence does not suffer the same surveillance and lack of
               privacy associated with becoming a member of an incarcerated population.” Id. at
               159.
¶ 20       Thereafter, the court found that the “legislature intended in section 5-8-7(b) of the
       Unified Code of Corrections to distinguish between defendants who are in custody and those
       who are released on bond, subject to the conditions of the bond. We therefore cannot
       conclude that the term ‘custody,’ as it is used in section 5-8-7(b), was intended to encompass
       the period of time during which a defendant is released on bond, regardless of the restrictions
       that might be imposed on him during that time.” Id. at 160.
¶ 21       At all times relevant during Ramos, the Unified Code read as follows:
               “Calculation of Term of Imprisonment. (a) A sentence of imprisonment shall
               commence on the date on which the offender is received by the Department or the
               institution at which the sentence is to be served.
                        (b) The offender shall be given credit on the determinate sentence or maximum


                                                   -5-
                  term and the minimum period of imprisonment for time spent in custody as a result
                  of the offense for which the sentence was imposed, at the rate specified in Section
                  3-6-3 of this Code.” Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-8-7(b).

¶ 22                                             B. Beachem
¶ 23       In Beachem, the State charged defendant with possession of a controlled substance with
       intent to deliver. Beachem, 229 Ill. 2d at 238. Our supreme court noted that, prior to the
       defendant’s trial and conviction, he “was assigned to the Sheriff’s Day Reporting Center
       program (Program) for 258 days and actually reported to the Day Reporting Center (Center)
       on 171 days.” Id. at 239. Upon entry into the program, each participant must complete an
       eight-day orientation. Thereafter, each participant is placed on a track, which varies from
       nine hours per day to three hours per day. The concept is to acclimate the participant to the
       daily routine of reporting to a strictly supervised environment. Id. at 240.
¶ 24       At sentencing, the trial court credited defendant with 26 days toward his sentence of
       incarceration for the time he spent in “actual physical confinement.” Id. at 241.
¶ 25       Ultimately, however, our supreme court found the defendant was in custody within the
       meaning of section 5-8-7 on the days he reported to the Center. Id. at 255. At all times
       relevant to the Beachem decision, section 5-8-7 stated: “(b) [t]he offender shall be given
       credit on the determinate sentence or maximum term and the minimum period of
       imprisonment for time spent in custody as a result of the offense for which the sentence was
       imposed.” 730 ILCS 5/5-8-7(b) (West 2004); Beachem, 229 Ill. 2d at 244.
¶ 26       The Beachem court found the statutory language in section 5-8-7 ambiguous “because the
       term ‘custody’ has several definitions and nothing in the context of the statute provides any
       indication as to the appropriate definition.” Id. at 246. The Beachem court then discussed
       Morrison and Ramos, commenting at length on the difference between being entered into the
       Day Reporting Program and being released on bond. Id. at 249-50. The Beachem court
       detailed in depth the rights of a defendant who is released on bond, including the right of
       being “entitled to judicial procedure before being arrested or having the terms of his liberty
       modified.” Id.
¶ 27       Acknowledging that the Ramos defendant was only allowed to leave his residence 3
       times in 168 days, the Beachem court found its ruling consistent with Ramos and emphasized
       the significant differences between the Ramos defendant’s release on bond with the condition
       of home confinement and that of Beachem, who entered the Day Reporting Program. Id. “By
       contrast [to being released on bond], a defendant in the Program has no statutory entitlement
       to any of the foregoing procedures and protections. For instance, there is no requirement that
       the sheriff obtain a warrant prior to defendant’s rearrest. *** Further, a defendant in the
       Program does not have a statutory right to challenge the terms, conditions, or rules of his
       participation in the Program. There is no established judicial procedure for a defendant to
       challenge the sheriff’s selection of inmates for the Program, nor to contest the terms or the
       track to which he is assigned. There is no right to a hearing and no right to counsel. A
       defendant must simply adhere to the sheriff’s unilaterally imposed conditions of
       participation.” Id. at 250-51.
¶ 28       The Beachem court saw such a significant distinction between being released on bond
       and being a participant in the Day Reporting Program, it actually used the phrase, “Unlike a
       defendant who is actually released on bond ***.” Id. at 251.

                                                  -6-
¶ 29       Beachem continued, noting the defendant therein “was still subject to confinement, albeit
       limited confinement, while at the Center. Defendant spent between three and nine hours a
       day in a state-run ‘strictly supervised environment.’ [Citation.] The amount of time defendant
       spent there, the program track defendant was placed on, and the services provided to him
       were all at the discretion of the sheriff. Defendant was not free to come and go as he pleased.
       He was not free to structure his day as he saw fit. He was obligated to report at an established
       time to and participate in a state-run program. He was not given the ability to decline
       attending on any given day. In fact, defendant’s failure to report could result in his immediate
       arrest and reincarceration. Thus, unlike a defendant on a traditional bond, a defendant in the
       Program is not only under the ‘constructive custody’ of the sheriff, he is also under the
       sheriff’s physical custody for several hours a day. Thus, we hold that defendant was in
       ‘custody’ while participating in the Program for the purposes of section 5-8-7.” Id. at 253-54.

¶ 30                                     C. Defendant’s Argument
¶ 31       Initially, we must note that the parties quarrel over which version of the crediting statute,
       section 5-4.5-100(b) (730 ILCS 5/5-4.5-100(b) (West 2008)) or section 5-4.5-100 (730 ILCS
       5/5-4.5-100 (West 2012)), applies to defendant’s claims. The parties agree that the language
       contained in the most recent version of the statute is the most favorable to defendant’s
       argument that his release on appeal equates to custody under the crediting statute. We need
       not decide this quarrel regarding which statute applies to defendant’s case as we hold, for the
       reasons stated below, that defendant’s home confinement while released on appeal bond does
       not equate to custody as defined by the either version of the statute.
¶ 32       Defendant notes that our supreme court decided Beachem in 2008. Without citation to
       any legislative history, defendant claims the legislature’s most recent amendment to the
       crediting statute “was a codification of the Illinois Supreme Court’s ruling in Beachem.”
       Defendant continues, claiming that “credit for time on home detention has gone full circle
       from the blanket prohibition outlined in the 1990 decision in Ramos, to a discretionary
       standard adopted in 2010, and now mandatory credit as of June 22, 2012.”
¶ 33       We disagree with defendant’s assertion that Beachem or the current version of the statute
       mandates awarding him credit toward his sentence for the days he was released on appeal
       bond.
¶ 34       As the State aptly notes, be it section 5-4.5-100 (730 ILCS 5/5-4.5-100 (West 2012)) or
       section 5-8-7 (730 ILCS 5/5-8-7 (West 2006)), the crediting statute has stated that the
       offender shall be given credit “for time spent in custody as a result of the offense for which
       the sentence was imposed.” (Emphasis added.) 730 ILCS 5/5-8-7 (West 2006); see also 730
       ILCS 5/5-4.5-100 (West 2012). The State claims that defendant’s home confinement does not
       equate to custody as a result of the offense for which the sentence was imposed. Instead, the
       State characterizes the home confinement as a self-requested condition necessary to secure
       his release from the custody which resulted from the offense defendant committed.
¶ 35       We agree with the State. Reading Beachem in conjunction with section 5-4.5-100 as
       presently constituted, we find that home confinement pursuant to an appeal bond does not
       qualify as custody entitling one to credit against his sentence under the statute.
¶ 36       Beachem supports our holding and serves to guide us in interpreting section 5-4.5-100.
       The Beachem court found section 5-8-7 was “ambiguous because the term ‘custody’ has


                                                   -7-
       several definitions and nothing in the context of the statute provides any indication as to the
       appropriate definition.” Beachem, 229 Ill. 2d at 246. While the legislature amended the
       crediting statute, repealing section 5-8-7 and creating section 5-4.5-100, it did nothing to
       provide a definitive definition of what it considers “custody” under the statute. As such,
       Beachem’s analysis still guides us to determine whether this defendant was in custody for
       purposes of the crediting statute.
¶ 37       As noted above, when differentiating between the defendant required to report to the Day
       Reporting Center in Beachem from the defendants released on bond in Morrison and Ramos,
       the Beachem court discussed all the protections afforded someone released on bond, such as
       the ability to challenge the conditions of release. The Beachem court further focused on the
       fact that it was the sheriff’s department, not the court, which “unilaterally imposed conditions
       of participation” upon the participant in the Day Reporting Program. (Internal quotation
       marks omitted.) Beachem, 229 Ill. 2d at 251. The Beachem court stressed that any violation
       of the conditions imposed by the sheriff’s department “could result in his immediate arrest
       and reincarceration.” Id. at 253.
¶ 38       Conversely, the conditions of this defendant’s home confinement were not set by the
       executive branch but, instead, by the court. A violation of those conditions, as noted in the
       court’s order, would not result in immediate arrest but instead, “Any violation is to be
       reported to the on-call Grundy County State’s Attorney *** and defense counsel office of
       Jeff Tomczak.”
¶ 39       Unlike the Beachem defendant, who had no recourse but to accept the terms of the Day
       Reporting Program, the defendant herein could and, in fact, did petition the court to change
       his terms of home confinement. After learning the Grundy County probation department did
       not have the technology to provide the SCRAM device as originally ordered, defendant
       petitioned the court and was allowed to have the “Traffic School” monitor his device.
¶ 40       Defendant does not address any of the substantive differences from the conditions of
       Beachem’s Day Reporting Program to his conditions of release on appeal bond. He merely
       states that his home confinement while released on bond equates to home detention under the
       Electronic Home Detention Law (730 ILCS 5/5-8A-1 et seq. (West 2012)) and that the
       current crediting statute mandates the court “shall give credit to the defendant for time spent
       in home detention” (730 ILCS 5/5-4.5-100(b) (West 2012)). Therefore, defendant argues he
       is entitled to the credit. Again, we disagree.
¶ 41       The Home Detention Law defines home detention as “the confinement of a person
       convicted or charged with an offense to his or her place of residence under the terms and
       conditions established by the supervising authority.” 730 ILCS 5/5-8A-2(C) (West 2012).
       “Supervising authority” is defined as “the Department of Corrections, probation supervisory
       authority, sheriff, superintendent of municipal house of corrections or any other officer or
       agency charged with authorizing and supervising home detention.” 730 ILCS 5/5-8A-2(E)
       (West 2012).
¶ 42       Defendant argues that the terms of his release satisfy all the necessary elements to be
       considered home detention under the Home Detention Law. Specifically, he states that
       defendant’s electronic monitoring was “supervised by probation.” It was not. It was
       supervised by a private traffic school. Even if defendant’s home confinement was supervised
       by the probation department, it would not meet the definition of home detention under the
       law. To satisfy the definition of home detention, the confinement must be “under the terms

                                                  -8-
       and conditions established by the supervising authority.” 730 ILCS 5/5-8A-2(C) (West
       2012).
¶ 43       What authority did the probation department have to set the terms and conditions of
       defendant’s release on appeal bond? The answer, of course, is none. It was the trial court that
       “established” the “terms and conditions” of defendant’s release. Defendant possessed the
       same right as the probation department to request that the court change the conditions and
       terms of his release. The absence of a similar right weighed heavily in the Beachem court’s
       decision to find one ordered to report to a Day Reporting Program is “in custody” for
       purposes of the crediting statute. The bottom line is that the whole point of the appeal bond,
       like every other bond, was to avoid custody. Virtually every bond has restrictions, this one
       more than some. That does not change the very simple premise that the Code does not
       anticipate sentencing credit for time spent while released on bond. Our supreme court was
       unequivocal when holding that for purposes of sentencing credit, time spent in custody does
       not include that period of time during which a defendant is released on bond, regardless of
       the restrictions imposed as a condition of release. Ramos, 138 Ill. 2d at 160. We hold that
       defendant was not in custody within the meaning of section 5-4.5-100(b) (730 ILCS
       5/5-4.5-100(b) (West 2012)) while released on appeal bond.

¶ 44                                     CONCLUSION
¶ 45       For the foregoing reasons, the judgment of the circuit court of Grundy County is
       affirmed.

¶ 46      Affirmed.




                                                  -9-
