
                   Nos. 2--95--0231, 2--94--1411 cons. 

_________________________________________________________________



                                  IN THE



                        APPELLATE COURT OF ILLINOIS



                              SECOND DISTRICT

_________________________________________________________________



THE PEOPLE OF THE STATE              )  Appeal from the Circuit Court

OF ILLINOIS,                         )  of Lee County.

                                     )

     Plaintiff-Appellee,             )

                                     )  Nos. 93--TR--5588

     v.                              )       94--CF--0077

                                     )

JOHN L. BENNETT,                     )  Honorable

                                     )  Thomas E. Hornsby,

     Defendant-Appellant.            )  Judge, Presiding.

_________________________________________________________________



     JUSTICE INGLIS delivered the opinion of the court:



     Defendant, John L. Bennett, appeals the judgment of the

circuit court of Lee County denying his petitions for habeas corpus

and mandamus.  We affirm.

     On September 25, 1993, defendant was charged with driving

while under the influence of alcohol (625 ILCS 5/11--501(a)(2)

(West 1994)) and driving with a breath-alcohol concentration of

0.10 or more (625 ILCS 5/11--501(a)(1) (West 1994)), both

misdemeanors.  On October 1, 1993, in a separate case, he was

charged with driving while driver's license revoked (625 ILCS 5/6--

303(d) (West 1994)), a felony.  On September 6, 1994, defendant

pleaded guilty to driving with a breath-alcohol concentration of

0.10 or more (625 ILCS 5/11--501(a)(1) (West 1994)) and driving

while license revoked (625 ILCS 5/6--303(d) (West 1994)).  He was

sentenced to 364 days' imprisonment on the misdemeanor conviction

and to 18 months' imprisonment on the felony conviction, the

sentences to be served concurrently.  Defendant's felony sentence

was completed on November 30, 1994, after the appropriate good-time

and time-served credits were applied, and he was placed on

mandatory supervised release.  Defendant was returned to the Lee

County jail to serve the remaining three months of his misdemeanor

sentence.

     Defendant immediately filed an emergency petition for writs of

habeas corpus and mandamus, seeking an immediate release because of

the completion of his felony sentence.  Defendant argued that the

sentences were merged, so that the completion of the felony

sentence would extinguish any remaining time on the misdemeanor

sentence.  The trial court denied the petition on December 1, 1994. 

That same day, defendant filed a motion for diminution of sentence,

which was also denied.  Defendant appealed from the denial of the

petition and the motion for diminution.

     On December 12, 1994, defendant filed a motion for

reconsideration of the petition and of the motion for diminution,

which was denied.  Defendant filed a notice of appeal of these

rulings on January 12, 1995, one day late.  His motion to file a

late notice of appeal was granted, and the appeal was consolidated

with the other timely appeal.

     Defendant presents a single issue for review.  He argues that

he was denied equal protection and due process of the law because

he is required to serve more prison time than someone who had

received the same sentences for the same conduct, but already

happened to be serving the misdemeanor sentence.  Accordingly,

defendant urges this court to declare section 5--8--4(d) of the

Unified Code of Corrections (Code) (730 ILCS 5/5--8--4(d) (West

1994)) unconstitutional.

     As an initial matter, we note that defendant raises his

constitutional challenge to the merger provision for the first time

on appeal.  Defendant has not waived the issue by failing to raise

it in the trial court, however, as a constitutional challenge to a

statute may be raised at any time, including on appeal.  People v.

Bryant, 128 Ill. 2d 448, 454 (1989).

     We turn first to the statutory scheme defendant complains of

in order to understand his contentions.  Section 5--8--4(d) of the

Code provides that "[a]n offender serving a sentence for a

misdemeanor who is convicted of a felony and sentenced to

imprisonment shall be transferred to the Department of Corrections,

and the misdemeanor sentence shall be merged in and run

concurrently with the felony sentence."  730 ILCS 5/5--8--4(d)

(West 1994).  Thus, merger occurs only when the offender is already

serving his or her misdemeanor sentence, and not when the offender

is simultaneously sentenced to felony and misdemeanor sentences. 

See People v. Winslow, 258 Ill. App. 3d 327, 330 (1994); People v.

Betts, 246 Ill. App. 3d 84, 86 (1993).  The merger provision is

significant because good-time credits are accrued differently for

felons than misdemeanants.  Felons receive one day of good-conduct

credit for each day of service in prison, and they may receive an

award of up to 180 days of good-conduct credit for meritorious

service.  730 ILCS 5/3--6--3(a)(2), (a)(3) (West 1994). 

Misdemeanants receive only one day of good-behavior allowance for

each day served in the county jail.  730 ILCS 130/3 (West 1994).  

     In defendant's case, he served 3 months of his 18-month felony

sentence.  Defendant therefore received the maximum amount of good-

conduct credit and the 180-day meritorious service award.  The

three months served in the Department of Corrections accrued only

three months of good-behavior allowance for his misdemeanor

sentence, leaving defendant with at least three months left to

serve.

     An equal protection claim is analyzed in the same fashion

under both the United States and Illinois Constitutions.  Jacobson

v. Department of Public Aid, 171 Ill. 2d 314, 322 (1996).  The

threshold inquiry for an equal protection claim is whether

similarly situated people are being treated dissimilarly.  People

v. Burton, 100 Ill. App. 3d 1021, 1023 (1981).  Defendant defines

himself to be "similarly situated to someone who has his sentences

merged after being convicted of the same separate offenses and

given the identical individual sentences."  Defendant contends that

the operation of the merger provision (730 ILCS 5/5--8--4(d) (West

1994)) results in dissimilar treatment between the two classes, as

one in defendant's position must serve more actual prison or jail

time than one whose sentences have been merged.  We find that

defendant has failed to establish the existence of such dissimilar

treatment as a result of the operation of the merger provision (730

ILCS 5/5--8--4(d) (West 1994)).

     The merger provision (730 ILCS 5/5--8--4(d) (West 1994)) does

not mandate that an offender with nonmerged concurrent misdemeanor

and felony sentences will automatically serve more time than an

offender with merged sentences.  If, as an example, an offender

received a 2-year felony sentence and a 364-day misdemeanor

sentence, then both the merged and nonmerged offenders would serve

6 months in prison, assuming maximum good-time credits.  Therefore,

the merger provision (730 ILCS 5/5--8--4(d) (West 1994)) does not

cause the dissimilarity defendant complains of, but rather, such

difference is due to the actual terms of the sentences he received. 

Thus, defendant has failed to demonstrate any dissimilar treatment

in the operation of the merger provision (730 ILCS 5/5--8--4(d)

(West 1994)) sufficient to state an equal protection claim.

     Even if defendant's proposed classification were subject to

dissimilar treatment, his equal protection claim is nevertheless

unavailing.  For a court to engage in any manner of equal

protection review of a statute, the challenging party must show

that the statute classifies persons in some manner.  People v.

Wegielnik, 152 Ill. 2d 418, 429 (1992).  The merger provision does

not create any classification on its face.  Rather, it is a neutral

law that may have a disparate impact on persons based on the timing

of their sentences.  "Therefore, to present a cognizable equal

protection claim, the defendant must show that the statute was

enacted for a discriminatory purpose."  Wegielnik, 152 Ill. 2d at

429.

     In order to establish that a facially neutral law was enacted

for a discriminatory purpose, the challenging party "must show that

the legislature selected a course of action not merely 'in spite

of' its disparate impact on an identifiable group, but because of

an anticipated discriminatory effect." (Emphasis in original.)

Wegielnik, 152 Ill. 2d at 429, quoting McCleskey v. Kemp, 481 U.S.

279, 298, 95 L. Ed. 2d 262, 282, 107 S. Ct. 1756, 1770 (1987). 

Here, defendant has presented no evidence, nor even alleged, that

the legislature enacted the merger provision of the Code because it

would discriminate against offenders whose misdemeanor and felony

sentences were not merged.  We therefore reject defendant's equal

protection claim.

     Defendant also claims that the merger provision violates due

process.  Defendant contends that due process is violated because

the merger provision (730 ILCS 5/5--8--4(d) (West 1994)) is not

" 'reasonably designed to remedy the evils which the legislature

has determined to be a threat to the public health, safety and

general welfare.' "  People v. Bradley, 79 Ill. 2d 410, 417 (1980),

quoting Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill.

2d 152, 159 (1955).  Defendant considers the purposes of the Code

as set forth in section 1--1--2 (730 ILCS 5/1--1--2 (West 1994)) to

be (1) to impose sentences in light of the seriousness of the crime

and the rehabilitative potential of the offender; (2) to prevent

arbitrariness in sentencing; and (3) to rehabilitate the offender. 

According to defendant, rather than furthering these goals, the

merger provision actually hinders the statutory goals by ignoring

the rehabilitative potential of offenders.  Defendant contends that

those subjected to simultaneous sentencing for felonies and

misdemeanors will face the harsher penalty of having to serve more

actual time in prison.  Defendant further contends that this will

lead to the neglect of an offender's rehabilitative potential as a

sentencing objective because the operation of the merger provision

will lead to a longer term of imprisonment without regard to

whether one offender deserves such a longer period of

incarceration.  We reject defendant's argument.

     The test for a due process claim is whether the statute is

rationally related to a legitimate State goal.  People v.

Kimbrough, 163 Ill. 2d 231, 242 (1994).  Defendant has failed to

show how the operation of the merger provision is not rationally

related to the State's legitimate penal goals.  By essentially

repeating his argument, defendant maintains that the operation of

the merger provision will automatically require a prisoner whose

felony and misdemeanor sentences are not merged to serve more time

than one whose sentences are merged.  This is simply not the case. 

Thus, the merger provision does not have the effect of minimizing

the rehabilitative potential of the offender as defendant claims. 

Rather, the merger provision serves the legitimate goals of

avoiding overcrowding in county jails, avoiding the piecemeal

punishment of prisoners, and aiding in their rehabilitation by

providing the offender with the goal of serving a single sentence. 

People v. Singleton, 103 Ill. 2d 339, 343 (1984) (analyzing

predecessor statute substantially similar to instant statute).  We

thus conclude that the merger provision is reasonably designed to

accomplish its purposes.  Defendant's due process arguments are

without merit.

     For the foregoing reasons, the judgment of the circuit court

of Lee County is affirmed.

     Affirmed.

     McLAREN, P.J., and THOMAS, J., concur.



