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                               Appellate Court                            Date: 2016.03.07
                                                                          11:42:18 -06'00'




                  People v. Clendenny, 2016 IL App (4th) 150215



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            RANDALL T. CLENDENNY, Defendant-Appellant.



District & No.     Fourth District
                   Docket No. 4-15-0215



Filed              January 26, 2016



Decision Under     Appeal from the Circuit Court of Calhoun County, No. 13-CF-76; the
Review             Hon. John Frank McCartney, Judge, presiding.



Judgment           Affirmed.



Counsel on         David E. Leefers (argued), of Leefers Law Offices, of Jacksonville,
Appeal             for appellant.

                   Richard Ringhausen, State’s Attorney, of Hardin (Patrick Delfino,
                   David J. Robinson, and Julia Kaye Wykoff (argued), all of State’s
                   Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE APPLETON delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Knecht and Justice Pope concurred in the judgment
                   and opinion.
                                               OPINION

¶1       Pursuant to a partially negotiated plea agreement, defendant, Randall T. Clendenny,
     pleaded guilty to reckless homicide. The trial court sentenced defendant to 30 months’
     probation, including 18 months’ periodic imprisonment as a condition of his probation.
     Defendant appeals, arguing his sentence is void as excessive because the allowable maximum
     term of periodic imprisonment under the governing statute was 12 months. We disagree and
     affirm.

¶2                                        I. BACKGROUND
¶3       In October 2013, the State charged defendant with reckless homicide, a Class 3 felony (720
     ILCS 5/9-3(a), (d)(2) (West 2012)), as a result of his reckless operation of a motor vehicle,
     which caused the death of his passenger. In May 2014, defendant pleaded guilty to this offense
     and to a separate misdemeanor driving-under-the-influence (DUI) offense. The DUI offense is
     not subject to this appeal. Defendant agreed to plead guilty to the charges in exchange for the
     State’s agreement to cap its sentencing recommendation at three years’ imprisonment.
¶4       In June 2014, the trial court, the Honorable Richard D. Greenlief presiding, conducted a
     sentencing hearing. The State recommended a sentence of three years in prison. Defendant
     recommended a sentence of probation. After considering the evidence, the presentence
     investigation report, letters of recommendation, victim impact statements, recommendations
     of counsel, defendant’s statement in allocution, and factors in aggravation and mitigation, the
     court sentenced defendant to 30 months’ probation with 18 months’ periodic imprisonment in
     the county jail as a condition of his probation. The court agreed to allow defendant to be
     released for work and for alcohol treatment, and to be present at the birth of his child “for as
     long as his wife is in the hospital to deliver the child. He should be present when the child is
     born.”
¶5       During sentencing, the trial court described the sentence as follows: “It is a combination of
     probation and periodic imprisonment. Work release is what’s known.” After pronouncing the
     sentence, the court referred to the condition interchangeably as “periodic imprisonment” and
     “work release.” The court stated:
                 “This way, you support your family. You are going to have the opportunity to at
             least get the start, not maybe not a very good start until you are through with your
             periodic imprisonment, but a start on the counseling that you need to address, very
             clear alcohol problems that you have.
                 You need at–because it is periodic and you will need to be released, you need to get
             an evaluation, and I’ll require that within 60 days.
                                                   ***
                 Sixty days to get the alcohol and drug evaluation, and you are to follow the
             recommendations of that evaluation, as far as the treatment that you receive.
                 Again, it is going to be difficult for that first 18 months that you are doing periodic
             to get all that done. But, you are at least going to get a start on it, and you are going to
             support your family in the process.”
¶6       The trial court continued:


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                    “What he will need to do is to have the evaluation. He should be released to do that,
               and once the counseling is there, it will not interfere with work days, and he should
               submit to the probation office and to the sheriff a proposed schedule for counseling.”
¶7         Defendant filed a motion to modify the condition of periodic imprisonment, claiming his
       18-month term of periodic imprisonment was void in light of section 5-7-1(d) of the Unified
       Code of Corrections (Unified Code) (730 ILCS 5/5-7-1(d) (West 2012)). Defendant argued
       that section limits the term of periodic imprisonment for employment purposes to 12 months.
       The trial court, the Honorable John Frank McCartney presiding, denied defendant’s motion to
       modify, finding a work-release program “appears to be far more strict than the sentence
       imposed in this case. Defendant is allowed out six days per week and is unsupervised other
       than potential contact with probation.” Judge McCartney found Judge Greenlief allowed
       defendant to be released for purposes of his employment, to obtain an evaluation, to participate
       in treatment, and for the birth of his child. Accordingly, Judge McCartney noted, “there was
       flexibility in the execution of the sentence. The sentence does not appear to be part of a county
       work release program as contemplated by statute. Therefore, the court finds the 18-month
       periodic imprisonment term was statutorily authorized.”
¶8         This appeal followed.

¶9                                              II. ANALYSIS
¶ 10        In this appeal, we must decide whether the trial court’s imposition of a term of periodic
       imprisonment with release for work, treatment, and the birth of defendant’s child can be
       equally compared to participation in a work-release program as contemplated by statute. To
       begin, we note generally, the trial court is in the best position to determine an appropriate
       sentence in each case, and a reviewing court will not disturb that sentence unless it appears the
       trial court abused its discretion. People v. Anderson, 325 Ill. App. 3d 624, 637 (2001). That is,
       a reviewing court gives great deference and weight to the trial court’s decision. Anderson, 325
       Ill. App. 3d at 637. However, our standard of review is different here because we are not
       reviewing the court’s discretionary decision. Instead, we are deciding whether the sentencing
       judgment is void given the applicable statutory language.
                “The fundamental rule of statutory construction is to ascertain and give effect to the
                legislature’s intent. [Citation.] The best indication of legislative intent is the statutory
                language, given its plain and ordinary meaning. [Citation.] Where the language is clear
                and unambiguous, we will apply the statute without resort to further aids of statutory
                construction. [Citation.] The construction of a statute is a question of law that is
                reviewed de novo. [Citation.]” People v. Ramirez, 214 Ill. 2d 176, 179 (2005).
¶ 11        Section 5-7-1 of the Unified Code, the statute governing the terms of periodic
       imprisonment, provides as follows:
                    “(a) A sentence of periodic imprisonment is a sentence of imprisonment during
                which the committed person may be released for periods of time during the day or night
                or for periods of days, or both, or if convicted of a felony, *** committed to any
                county, municipal, or regional correctional or detention institution or facility in this
                State for such periods of time as the court may direct. Unless the court orders
                otherwise, the particular times and conditions of release shall be determined by the
                Department of Corrections, the sheriff, or the Superintendent of the house of
                corrections, who is administering the program.

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                    (b) A sentence of periodic imprisonment may be imposed to permit the defendant
              to:
                        (1) seek employment;
                        (2) work;
                        (3) conduct a business or other self-employed occupation including
                   housekeeping;
                        (4) attend to family needs;
                        (5) attend an educational institution, including vocational education;
                        (6) obtain medical or psychological treatment;
                        (7) perform work duties at a county, municipal, or regional correctional or
                   detention institution or facility;
                        (8) continue to reside at home with or without supervision involving the use of
                   an approved electronic monitoring device, *** or
                        (9) for any other purpose determined by the court.
                   ***
                   (d) A sentence of periodic imprisonment shall be for a definite term of *** up to 18
               months, or the longest sentence of imprisonment that could be imposed for the offense,
               whichever is less, for [a Class 3 felony]; however, no person shall be sentenced to a
               term of periodic imprisonment longer than one year if he is committed to a county
               correctional institution or facility, and in conjunction with that sentence participate[s]
               in a county work release program comparable to the work and day release program
               provided for in Article 13 of the Unified Code *** in State facilities.” (Emphasis
               added.) 730 ILCS 5/5-7-1 (West 2012).
¶ 12       In 2001, the Second District considered the same issue defendant raises here. People v.
       Ortiz, 321 Ill. App. 3d 920 (2001). In Ortiz, the trial court sentenced the defendant to 30
       months’ intensive probation. Ortiz, 321 Ill. App. 3d at 920. A condition of probation required
       the defendant to serve 18 months’ periodic imprisonment in jail, only to be released for
       employment and substance-abuse treatment. Ortiz, 321 Ill. App. 3d at 920. The defendant
       appealed, claiming the maximum allowable term of periodic imprisonment was 12 months.
       Ortiz, 321 Ill. App. 3d at 920.
¶ 13       The Second District agreed with the defendant, finding the terms of the defendant’s
       release, namely that he was to be “released only for work and treatment,” appeared to be
       comparable to the work-release program provided for in the Unified Code. Ortiz, 321 Ill. App.
       3d at 921-22. Therefore, the court reduced the term of periodic imprisonment from 18 months
       to 12 months. Ortiz, 321 Ill. App. 3d at 922.
¶ 14       In 2003, the Second District addressed the issue again, but it found the periodic
       imprisonment was not comparable to a work-release program. People v. Reyes, 338 Ill. App.
       3d 619, 621-22 (2003). The court distinguished its holding in Ortiz by noting that the trial court
       in Reyes, in its sentencing order, had specifically stated the defendant was not participating in a
       work-release program. Reyes, 338 Ill. App. 3d at 622. The court held: “In this case, the
       sentence imposed was for 18 months of periodic imprisonment with release for work and
       treatment but not for participation in the work release program. *** Neither Ortiz nor section
       5-7-1(d) of the [Unified] Code applies to reduce defendant’s sentence.” Reyes, 338 Ill. App. 3d
       at 622-23.

                                                    -4-
¶ 15       In line with Reyes, we find here, because the record does not indicate defendant’s
       employment was comparable to a county work-release program, his 18-month periodic
       imprisonment sentence is valid. See Reyes, 338 Ill. App. 3d at 622. As the Reyes court
       indicated, the analysis is record-driven. Reyes, 338 Ill. App. 3d at 621. That is, nothing in the
       record before us suggests the trial court contemplated defendant’s participation in a program
       comparable to the work- and day-release programs provided by the Illinois Department of
       Corrections. See 730 ILCS 5/3-13-1 to 3-13-6 (West 2012).
¶ 16       Indeed, there is a difference between a work-release program and being released to work.
       The former is an agency-created program, guided by specific parameters and subject to
       specific rules, sanctions, wages, and working conditions. See, e.g., 730 ILCS 5/3-13-1 to
       3-13-6 (West 2012). A work- or day-release prisoner may be allowed to leave an institution
       only for work, education, or treatment purposes, or for any other purpose “directly related to
       programs of the Department [of Corrections].” 730 ILCS 5/3-13-2 (West 2012). Defendant’s
       periodic imprisonment conditions are more lenient, as evidenced by the following: (1)
       defendant was to devise his own “itinerary as to where he’s going to be, the time he needs to
       leave, etc.”; (2) Judge Greenlief noted there was “a certain amount of trust that’s involved” in
       defendant’s release; (3) defendant would be released to work for six days a week; (4) according
       to the written order of periodic imprisonment, Judge Greenlief allowed defendant to be
       released to seek employment, if he was not otherwise employed, for two hours per day; and (5)
       the written supplemental order allowed defendant’s release “to attend the birth [of] his child,
       and shall cover all times that defendant’s wife is in the hospital for purposes of childbirth.”
¶ 17       Despite defendant’s argument to the contrary, the trial court’s reference to the probation
       condition as “work release” was not indicative of the court’s intent to impose a sentence that
       qualified as a program comparable to a county or state work-release program within the
       meaning of section 5-7-1(d) of the Unified Code (730 ILCS 5/5-7-1(d) (West 2012)). Rather,
       our review of the transcript from defendant’s sentencing hearing indicates the trial court
       intended to impose a punitive and oppressive sentence upon defendant, while avoiding a
       disservice to society and defendant’s children. With the imposition of a sentence of probation
       with periodic imprisonment, the court compelled defendant to work, not only to pay for his
       own incarceration, but to support his family, while receiving treatment and counseling for his
       “very clear alcohol problems.” Defendant’s release was not limited strictly to employment, as
       he was (1) ordered to participate in an alcohol evaluation and engage in any resulting
       recommended treatment and/or counseling and (2) allowed to attend the birth of his child and
       remain with his wife during her hospitalization. Nothing in the record suggests defendant’s
       periodic imprisonment was subject to the terms of, or comparable to, a county- or state-related
       work-release program. Therefore, we find the 18-month periodic imprisonment term was
       authorized by statute (730 ILCS 5/5-7-1(d) (West 2012)).

¶ 18                                       III. CONCLUSION
¶ 19      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 20      Affirmed.



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