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                              Appellate Court                            Date: 2017.04.19
                                                                         15:34:50 -05'00'




                   People v. Brown, 2017 IL App (3d) 140907



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



District & No.    Third District
                  Docket No. 3-14-0907



Filed             January 31, 2017



Decision Under    Appeal from the Circuit Court of Will County, No. 12-CF-732; the
Review            Hon. Carla Alessio-Policandriotes, Judge, presiding.



Judgment          Vacated and remanded with directions.



Counsel on        Michael J. Pelletier and Andrew J. Boyd, of State Appellate
Appeal            Defender’s Office, of Ottawa, for appellant.

                  James Glasgow, State’s Attorney, of Joliet (Richard T. Leonard, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             JUSTICE O’BRIEN delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Holdridge concurred in the judgment and opinion.
                  Justice Wright dissented, with opinion.
                                             OPINION

¶1       Defendant, Christopher Brown, appeals the denial of his request to correct the mittimus to
     reflect additional presentence custody credit. We vacate and remand with directions.

¶2                                              FACTS
¶3       On March 29, 2012, the State filed a complaint against defendant. The circuit court in Will
     County issued an arrest warrant the same day. At the time, defendant was in the custody of
     Cook County. On May 2, 2012, the circuit court issued a petition for habeas corpus asking the
     Cook County sheriff’s department to deliver defendant to the circuit court in Will County on
     May 9, 2012. Defendant appeared on that day in the custody of the Cook County sheriff’s
     department and a public defender was appointed.
¶4       On May 9, 2013, the parties entered a plea agreement in which defendant would plead
     guilty to home invasion (720 ILCS 5/12-11(a)(1) (West 2010)) and receive a sentence of 11
     years’ imprisonment. At sentencing, the court asked if the mittimus indicated that defendant
     would receive presentence custody credit from May 9, 2012, to May 9, 2013. Defense counsel
     agreed. The court sentenced defendant pursuant to the plea agreement and gave him credit for
     time served from May 9, 2012, to May 9, 2013. Defendant was also ordered to pay monetary
     assessments, including, inter alia: (1) $30 Children’s Advocacy Center fee (55 ILCS
     5/5-1101(f-5) (West 2012)), (2) $50 court systems fee (55 ILCS 5/5-1101 (West 2012)), (3)
     $10 specialized court fee (55 ILCS 5/5-1101(d-5) (West 2012)), (4) $100 crime laboratory
     analysis fee (730 ILCS 5/5-9-1.4 (West 2012)), and (5) $100 Trauma Center Fund fee (730
     ILCS 5/5-9-1.10 (West 2012)).
¶5       Defendant did not file a motion to reconsider sentence or a direct appeal, but on
     October 27, 2014, he filed a pro se motion for order nunc pro tunc requesting the circuit court
     correct the mittimus to reflect credit for time he spent in custody in Cook County. The court
     asked the State to review the motion, and the prosecutor stated, “[Defendant] is looking for
     time credit when he was in Cook County. However, the time he is looking for was before he
     was even charged with this crime. He is certainly not entitled to it on this case.” The circuit
     court denied the motion.

¶6                                          ANALYSIS
¶7       On appeal, defendant argues that (1) he should receive presentence custody credit
     beginning on the date he was charged and the arrest warrant was issued, equaling an additional
     41 days of presentence custody credit, (2) his $100 Trauma Center Fund and crime laboratory
     analysis fees must be vacated because he was not convicted of any offense that required the
     imposition of those fees, and (3) he should receive $5-per-day presentence custody credit
     against his fines.
¶8       At the outset, we note that defendant incorrectly labeled his request for additional
     presentence custody credit as a “Motion for Order Nunc Pro Tunc.” As nunc pro tunc orders
     may not be used to challenge a court’s previous decision, we will construe defendant’s motion
     as a motion to correct the mittimus. See People v. White, 357 Ill. App. 3d 1070, 1072-73
     (2005).



                                                -2-
¶9          Section 5-4.5-100(b) of the Unified Code of Corrections states, “[an] offender shall be
       given credit on the determinate sentence or maximum term and the minimum period of
       imprisonment 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). Sentencing credit for time
       served is mandatory and a claim of error in calculating such credit cannot be forfeited. People
       v. Hill, 2014 IL App (3d) 120472, ¶ 27;1 see also People v. Johnson, 401 Ill. App. 3d 678, 680
       (2010).
¶ 10        Here, defendant was charged and a warrant was issued on March 29, 2012, while defendant
       was in the custody of Cook County. While the dissent takes issue with the fact that defendant
       did not provide any certified records with regard to his custodial standing, we note the State
       does not dispute that defendant was in the custody of the Cook County sheriff. In fact, the
       State’s appellee brief provides, “The defendant was in the custody of Cook County until his
       first appearance with Will County on May 9, 2012.” We also note that the report of
       proceedings from the trial court below reveals that both the court and the defense attorney
       specifically acknowledged that defendant was in Cook County’s custody. The report of
       proceedings and the State’s affirmation of the fact are consistent with the information on the
       Department of Corrections’ website. Accordingly, we hold defendant was in simultaneous
       custody for his Cook and Will County offenses on March 29, 2012.
¶ 11        An offender who is in simultaneous custody on two offenses is entitled to presentence
       custody credit on the newer offense beginning on the date he or she was charged and became
       subject to arrest. White, 357 Ill. App. 3d at 1075; People v. Robinson, 172 Ill. 2d 452, 463
       (1996); Johnson, 401 Ill. App. 3d at 681-83. Therefore, defendant is entitled to an additional 41
       days of presentence custody credit reflecting the period from when he was charged, March 29,
       2012, to the date he first appeared in Will County, May 9, 2012.
¶ 12        In coming to this conclusion, we reject the State’s reliance on People v. Williams, 384 Ill.
       App. 3d 415, 416-17 (2008), for the proposition that defendant must be held to his plea deal,
       even where the sentencing credit was wrongly calculated. In Williams, the defendant’s agreed
       sentence stated that he would not receive presentence custody credit. Id. at 416. Here,
       defendant’s plea agreement did not contain such a prohibition. Therefore, Williams is
       inapplicable.
¶ 13        We further reject the State’s reliance on People v. Seesengood, 266 Ill. App. 3d 351, 360
       (1994), for the proposition that a defendant is not held on charges relating to an offense until a
       warrant is actually served. Seesengood was decided before our supreme court decided
       Robinson, 172 Ill. 2d 452. In Robinson, the court determined that a defendant is entitled to
       sentencing credit for both offenses when he is incarcerated on one charge and his bond is
       withdrawn or revoked on another charge as he is in simultaneous custody on both charges. Id.
       at 458-59. This court has extended the rule of Robinson to give sentencing credit to a defendant
       at the time the defendant is charged and the arrest warrant is issued. See People v.

           1
             Although this court in Hill discussed waiver, we note—as has the supreme court itself—that there
       is a distinct difference between waiver and forfeiture. See Buenz v. Frontline Transportation Co., 227
       Ill. 2d 302, 320 n.2 (2008) (“While waiver is the voluntary relinquishment of a known right, forfeiture
       is the failure to timely comply with procedural requirements. [Citations.] These characterizations apply
       equally to criminal and civil matters.”). Thus the relinquishment of an argument through failure to
       bring it in the trial court is properly termed a forfeiture of that argument.

                                                      -3-
       Chamberlain, 354 Ill. App. 3d 1070, 1074-75 (2005); White, 357 Ill. App. 3d at 1075. We will
       continue to rely on this line of case law.
¶ 14       Lastly, the State confesses error regarding the imposition of the Trauma Center Fund and
       crime laboratory analysis fees and agrees that defendant should receive $5-per-day
       presentence custody credit against his fines. After reviewing the record, we accept the State’s
       confession. As defendant was not convicted of any of the offenses for which the crime
       laboratory analysis and Trauma Center Fund fees may be assessed, we vacate those fees. See
       730 ILCS 5/5-9-1(c-5), 5-9-1.1, 5-9-1.4, 5-9-1.10 (West 2012); 625 ILCS 5/16-104b (West
       2012). The fines subject to presentence incarceration credit that were levied against defendant
       included the $30 Children’s Advocacy Center fee (People v. Jones, 397 Ill. App. 3d 651, 660
       (2009)), $50 court systems fee (People v. Smith, 2013 IL App (2d) 120691, ¶¶ 17-21), and $10
       specialized court fee (People v. Graves, 235 Ill. 2d 244, 249-55 (2009)). As defendant is
       entitled $5-per-day credit for 406 days’ presentence custody, these fines are reduced to zero.
       We further note that the fines and fees in section 1 of the criminal cost sheet appear to be
       miscalculated. We remand for recalculation of defendant’s monetary assessments consistent
       with this order.
¶ 15       In coming to this conclusion, we acknowledge the dissent’s position in People v. Walker,
       2016 IL App (3d) 140766, ¶¶ 17-28, and People v. Carter, 2016 IL App (3d) 140196, ¶¶ 85-86,
       but we adhere to the majority opinions in those cases.

¶ 16                                       CONCLUSION
¶ 17      The judgment of the circuit court of Will County is vacated and remanded with directions.

¶ 18      Vacated and remanded with directions.

¶ 19        JUSTICE WRIGHT, dissenting.
¶ 20        I respectfully dissent. In this case, defendant did not provide the trial court with any
       certified records from Cook County to support his motion for additional credit for time served
       prior to May 9, 2012. Therefore, the trial court correctly denied this request.
¶ 21        Similarly, defendant has not requested leave to supplement the record with certified copies
       of the Cook County records showing defendant was in custody in March 2012. Instead,
       defendant’s appendix contains information downloaded from the internet site belonging to the
       Illinois Department of Corrections (DOC). I am unwilling to rely on the downloaded DOC
       mittimus because it incorrectly shows defendant was convicted on count I of the charging
       instrument in the case at bar. I conclude there are likely other inaccuracies with respect to other
       information on this document.
¶ 22        The record on appeal is silent and does not conclusively establish whether defendant was in
       custody in Cook County in March 2012. Under these circumstances, the best way to measure
       when defendant was in custody on these charges is by considering the date the Will County
       warrant was served, which occurred on June 6, 2012. See People v. Seesengood, 266 Ill. App.
       3d 351 (1994). Yet, as part of the agreement, the State agreed to allow credit from defendant’s
       first appearance date in Will County on May 9, 2012, while the warrant was stayed by court
       order entered on April 26, 2012. I would uphold this plea agreement.



                                                    -4-
¶ 23       Next, I also dissent with the majority’s decision to remand this matter to the circuit court to
       recalculate monies due. Here, defendant did not timely challenge any fine or court cost
       recorded by the circuit clerk on May 9, 2013. Once again, like a broken record, I conclude both
       defendant and the State have forfeited any challenge to the $1086 balance due for the reasons
       expressed in my dissent in People v. Walker, 2016 IL App (3d) 140766, ¶¶ 16-29, and People
       v. Carter, 2016 IL App (3d) 140196, ¶¶ 85-86. I also reject the notion that the clerical errors
       give rise to a “void” sentence for reasons stated in those dissents.
¶ 24       Before addressing the propriety of defendant’s application for the $5 per diem credit that is
       presented to this court, I point out that the $5 per diem credit is not automatic. The parties often
       ignore the statute that requires a defendant to first make an “application” before the credit
       “shall be allowed.” 725 ILCS 5/110-14(a) (West 2012). In addition, several fines included in
       the $1086 total are not eligible for the per diem credit by statute.
¶ 25       Here, defense counsel understandably did not request the $5 per diem credit in the trial
       court, presumably because the court ordered defendant to pay costs only. Perhaps realizing he
       has forfeited any challenge to fines incorporated by the circuit clerk as court costs, defendant
       now applies for the $5 per diem credit to offset those fines that can no longer be challenged.
       This is a sound approach that results in a reduction of the balance due. In People v. Buffkin,
       2016 IL App (2d) 140792, the court held there is “no impediment” to granting the $5 per diem
       credit defendant requests for the first time when before a reviewing court. Id. ¶ 4.
¶ 26       After reviewing this record, I submit defendant has more than enough per diem credit to
       offset every fine eligible for the credit. Yet, the $10 Arrestee’s Medical Costs Fee, $100 Crime
       Lab Fee, and $100 Trauma Center Fee incorporated by the clerk in error as court costs are not
       eligible to be satisfied through application of the per diem credit. Due to procedural forfeiture,
       I respectfully disagree that these particular fines totaling $210 should be vacated by this court
       absent agreed revestment by the State.
¶ 27       However, all other unchallenged fines included in defendant’s tally sheet should be
       reduced to zero since the State concedes defendant is entitled to receive at least 365 days of $5
       per diem credit from May 9, 2012, to May 9, 2013. By my calculations, the costs total $534
       and include the following: $125 Clerk’s Filing Fee (705 ILCS 105/27.2 (West 2012)), $15
       Court Automation Fee (705 ILCS 105/27.3a (West 2012)), $25 Court Security Fee (55 ILCS
       5/5-1103 (West 2012)), $15 Document Storage Fee (705 ILCS 105/27.3c (West 2012)), $250
       DNA database analysis fee (730 ILCS 5/5-4-3(j) (West 2012)), $104 in Sheriff’s Fees (55
       ILCS 5/4-5001 (West 2012)), and 725 ILCS 5/124A-5 (West 2012) (extradition costs)).
¶ 28       Therefore, I would remand the case to the circuit clerk with directions to apply the $5
       per diem credit to all eligible fines, leaving a balance of fines that are ineligible for the
       per diem credit in the amount of $210. The total defendant should be required to pay for the
       remaining fines and costs should not exceed $744.




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