                                      2019 IL App (1st) 172372
                                           No. 1-17-2372
                                            June 10, 2019

                                                                                  FIRST DIVISION



                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                          FIRST DISTRICT


     THE PEOPLE OF THE STATE OF ILLINOIS, )                Appeal from the Circuit Court
                                          )                Of Cook County.
          Plaintiff-Appellee,             )
                                          )                No. 04 CR 21005
          v.                              )
                                          )                The Honorable
     MALVIN WASHINGTON,                   )                Ursula Walowski,
                                          )                Judge Presiding.
          Defendant-Appellant.            )



                  JUSTICE WALKER delivered the judgment of the court, with opinion.
                  Justice Pierce and Justice Griffin concurred in the judgment and opinion.


                                            OPINION

¶1        Defendant Malvin Washington was convicted in the Circuit Court of Cook County of the

       Class 1 felony of second degree murder and the Class X felony of aggravated battery with a

       firearm, and he was sentenced to consecutive terms of 15 years for the second degree murder

       and 10 years for the aggravated battery with a firearm. Following his sentencing, Malvin

       asked the trial court to award sentencing credit multiplied by a factor of 1.5 for time spent

       participating in qualified educational, vocational, and other programs while in the Cook

       County Department of Corrections (CCDOC). He sought enhanced programming credit
     No. 1-17-2372


        against his sentence for second degree murder pursuant to section 3-6-3 of the Unified Code

        of Corrections (Code). 730 ILCS 5/3-6-3 (West 2016). The trial court denied the enhanced

        programming credit in reliance on People v. Duke, 305 Ill. App. 3d 169 (1999) (holding that

        inmates serving consecutive sentences for a Class X felony and some other, non-Class X

        felony are ineligible for programming credit during the entire term of imprisonment). Malvin

        appeals from the trial court’s order denying enhanced programming credit. We hold that

        section 3-6-3 does not prohibit awarding enhanced programming credit for the part of a

        consecutive sentence that punishes an inmate for a crime not specifically listed as cause for

        denying the enhanced programming credit. Accordingly, we reverse the trial court’s denial of

        Malvin’s request for enhanced programming credit on his second degree murder conviction.

¶2                                          I. BACKGROUND

¶3         On March 21, 2004, cars driven by Antonio Washington and Antoine Lee collided.

        People from the neighborhood converged on the accident scene. Antoine’s uncle, Ronald

        Lee, physically confronted Antonio’s cousin, Malvin. Malvin shot Ronald three times. A

        stray bullet killed Marquis Reed.

¶4         Prosecutors charged Malvin with the first degree murder of Reed and aggravated battery

        with a firearm for the injury to Ronald. At the trial, Malvin testified that he acted in self-

        defense, but a jury found Malvin guilty as charged. The appellate court ordered a new trial,

        and the Illinois Supreme Court affirmed the appellate court’s judgment. People v.

        Washington, 2012 IL 110283. Malvin remained incarcerated as the case worked its way

        through the appeals process to a new trial. He used his time productively, earning a high

        school equivalency diploma and accumulating more than 5000 hours in educational

                                                   -2-
     No. 1-17-2372


        programs, much of it for tutoring other inmates. He also completed three classes at DePaul

        University.

¶5         On retrial, a jury found Malvin guilty of second degree murder and aggravated battery

        with a firearm. Witnesses at the sentencing hearing spoke highly of Malvin’s educational

        achievements while in the CCDOC programs. One CCDOC official testified that Malvin

        accomplished the rare feat of having no disciplinary infractions despite his long time in

        CCDOC. Another CCDOC official testified to the trust accorded to Malvin.

¶6         The trial judge imposed sentences of 10 years for aggravated battery and 15 years for

        second degree murder, with the sentences to run consecutively. Malvin asked the trial court

        to award credit against his sentence for programming days while in the custody of the

        CCDOC. The trial court, following Duke, 305 Ill. App. 3d 169, held that Malvin was not

        entitled to any enhanced programming credit because he was convicted of a Class X felony.

        Malvin now appeals.

¶7                                          II. ANALYSIS

¶8         On appeal, Malvin argues the trial court erred when it denied his enhanced programming

        credit pursuant to the version of section 3-6-3 (730 ILCS 5/3-6-3 (West 2016)) in place at the

        time of his sentencing. Malvin does not challenge the sufficiency of the evidence supporting

        his convictions. We review de novo the issue of statutory interpretation. People v. Whitney,

        188 Ill. 2d 91, 98 (1999).

¶9         We note that the General Assembly amended section 3-6-3(a)(4) to extend enhanced

        programming credit to prisoners convicted of Class X felonies, but the General Assembly

        specifically limited the amount of credit available to prisoners already serving sentences

                                                   -3-
       No. 1-17-2372


          when the amendment went into effect. The Code now provides, “sentence credit under

          paragraph *** (4) *** of this subsection (a) may be awarded to a prisoner who is serving a

          sentence for an offense described in paragraph (2), (2.3), (2.4), (2.5), or (2.6) for credit

          earned on or after the effective date of this amendatory Act.” Pub. Act 100-3 (eff. Jan. 1,

          2018) (amending 730 ILCS 5/3-6-3(a)(4.7)). The Public Act sets its effective date as January

          1, 2018. Malvin seeks enhanced programming credit for programs completed prior to the

          amendment. Thus, the amendment does not apply to the facts here.

¶ 10          Malvin does not seek any programming credit against his sentence as a Class X offender.

          Malvin argues, however, that he should be awarded enhanced programming credit against his

          second degree murder sentence.

¶ 11          Prior to the January 2018 amendment, section 3-6-3 of the Code restricted the amount of

          credit awarded to “a prisoner serving a sentence for *** aggravated battery with a firearm” to

          “no more than 4.5 days of sentence credit for each month of his or her sentence of

          imprisonment.” 730 ILCS 5/3-6-3(a)(2)(ii) (West 2016). Section 3-6-3(a)(2.1) provided that,

          “[f]or all offenses, other than those enumerated in subdivision (a)(2)(i), (ii), or (iii) *** the

          rules and regulations shall provide that a prisoner who is serving a term of imprisonment

          shall receive one day of sentence credit for each day of his or her sentence of imprisonment.”

          730 ILCS 5/3-6-3(a)(2.1) (West 2016). The parties agree that second degree murder qualifies

          as an offense not enumerated in subdivision (a)(2)(i), (ii), or (iii).

¶ 12          Section 3-6-3(a)(4) permits awarding enhanced programming credit provided for in

          section 3-6-3(a)(2.1) if the prisoner participates in certain programs while in CCDOC,



                                                        -4-
       No. 1-17-2372


          including the educational programs in which Malvin participated. Section 3-6-3(a)(4)

          provides:

             “The rules and regulations shall also provide that the sentence credit accumulated

             and retained under paragraph (2.1) of subsection (a) of this Section by any inmate

             during specific periods of time in which such inmate is engaged full-time in ***

             educational programs *** shall be multiplied by a factor of *** 1.50 for program

             participation ***. *** [S]entence credit, subject to the same offense limits and

             multiplier provided in this paragraph, may be provided to an inmate who was held

             in pre-trial detention prior to his or her current commitment to the Department of

             Corrections and successfully completed *** educational program[s] *** provided

             by the county department of corrections or county jail. Calculation of this county

             program credit shall be done at sentencing *** and shall be included in the

             sentencing order.” 730 ILCS 5/3-6-3(a)(4) (West 2016).

          The section restricted the programming credit: “no inmate shall be eligible for the additional

          sentence credit under this paragraph (4) *** if convicted of *** a Class X felony.” 730 ILCS

          5/3-6-3(a)(4) (West 2016).

¶ 13         The Fourth District Appellate Court of Illinois addressed a similar issue as applied to the

          Illinois Department of Corrections (IDOC) in Duke, 305 Ill. App. 3d 169. The trial court in

          Duke sentenced Mr. Duke to 35 years for a Class X felony and to 30 months for a Class 3

          felony, with the sentences to run consecutively. Mr. Duke participated in prison programs

          and sought programming credit against the portion of his sentence that punished him for a

          Class 3 felony. Mr. Duke filed a writ of mandamus because the IDOC found that Mr. Duke’s

                                                     -5-
       No. 1-17-2372


          Class X felony conviction made him ineligible for programming credit against his sentences

          under section 3-6-3(a)(4) (730 ILCS 5/3-6-3(a)(4) (West 2016)). The trial court issued the

          mandamus ordering the IDOC to consider Mr. Duke eligible for enhanced programming

          credit against the portion of his sentence attributable to the Class 3 felony conviction, and the

          IDOC appealed. The appellate court held that the Code disallowed programming credit for

          any portion of Mr. Duke’s sentence. In reversing the trial court, the Duke court relied on

          section 3-6-3(b), which provided, “[w]henever a person is or has been committed under

          several convictions, with separate sentences, the sentences shall be construed under [s]ection

          5-8-4 [of the Code] in granting and forfeiting of sentence credit.” 730 ILCS 5/3-6-3(b) (West

          2016). Section 5-8-4(e) provided:

             “[i]n determining the manner in which consecutive sentences of imprisonment

             *** will be served, [the IDOC] shall treat the defendant as though he or she had

             been committed for a single term subject to each of the following incidents:

                                                     ***

                 (4) The defendant shall be awarded credit against the aggregate maximum

             term and the aggregate minimum term of imprisonment for all time served in an

             institution *** at the rate specified in Section 3-6-3 [of this Code].” 730 ILCS

             5/5-8-4(g) (West 2016).

¶ 14         The Duke court found “a clear rule that the [IDOC] must treat consecutive sentences as a

          ‘single term’ of imprisonment for the purposes of awarding any good-time credit” and

          concluded that the IDOC must award credit against the combined sentences at a single rate

          for the entire combined term of imprisonment and the IDOC must use only the credit rate for

                                                      -6-
       No. 1-17-2372


          the crime subject to the harsher punishment. (Emphasis omitted.) Duke, 305 Ill App. 3d at

          173. The Duke court held that “the straightforward application of this rule requires the

          Director to treat an inmate serving consecutive sentences for a Class X felony and some

          other, non-Class X felony as ineligible for enhanced good-time credit during the entire

          ‘single term’ of imprisonment.” Id.

¶ 15         The Duke court’s analysis does not apply to enhanced programming credit while in the

          CCDOC because the issue in Duke was whether Mr. Duke was eligible for programming

          credit while in the custody of the IDOC. The Duke rule conflicts with our supreme court’s

          observation that “[o]ur jurisprudence *** makes it clear that consecutive sentences do not

          constitute a single sentence and cannot be combined as though they were one sentence for

          one offense. Each conviction results in a discrete sentence that must be treated individually.”

          People v. Carney, 196 Ill. 2d 518, 530 (2001). The rule in Duke also undermines public

          policy because educational programs, prison employment, and other skills learned while

          incarcerated promote habits and responsibility that contribute to more cooperative inmates

          and ultimately lower levels of recidivism.

¶ 16         We hold, in accord with the courts’ expectations and IDOC practice (see 20 Ill. Adm.

          Code 107.120 (2019)), that the reference in section 5-8-4 to “treat[ing] consecutive sentences

          as a ‘single term’ of imprisonment” does not preclude awarding credits at differing rates

          against different sentences under the provisions of section 3-6-3(a)(2) and (a)(2.1).

¶ 17         The State raises an argument not addressed in Duke. The State asserts that the applicable

          version of section 3-6-3(a)(4) provided that “no inmate shall be eligible for the additional

          sentence credit under this paragraph (4) *** if convicted of *** a Class X felony.” 730 ILCS

                                                       -7-
       No. 1-17-2372


          5/3-6-3(a)(4) (West 2016). The State contends that, because the trial court found Malvin

          guilty of a Class X felony, he can never become eligible for additional credit under section 3-

          6-3(a)(4), because he will always count as an inmate convicted of a Class X felony.

¶ 18         We find the statute ambiguous. The clause “an inmate convicted of a Class X felony”

          could refer to any incarcerated person who has ever had a Class X felony conviction on his

          record, it could refer to a prisoner serving a sentence for a Class X felony, or it could refer to

          a prisoner who is serving a sentence for a Class X offense and a sentence for a non-Class X

          offense. See People v. Donoho, 204 Ill. 2d 159, 172 (2003) (a statute is ambiguous if subject

          to two or more reasonable interpretations). If the General Assembly meant the prohibition to

          apply only for the duration of his sentence for the Class X felony, Malvin qualifies for the

          enhanced programming credit against his 15-year sentence for second degree murder.

¶ 19         The transcript of the legislative debates on the bill that included the provision precluding

          programming credits for Class X felons has no legislator commenting on consecutive

          sentences. 86th Ill. Gen. Assem., House Bill 3167, 1990 Sess.; 86th Ill. Gen. Assem., Senate

          Proceedings, June 20, 1990, at 234; 86th Ill. Gen. Assem., Senate Proceedings, June 21,

          1990, at 52-55. The bill’s sponsor emphasized that the bill encouraged inmates to engage in

          educational programs in hopes of reducing recidivism. 86th Ill. Gen. Assem., House

          Proceedings, May 16, 1990, at 33-34. The Senate Judiciary Committee recommended the

          language denying programming credit to inmates convicted of Class X offenses (86th Ill.

          Gen. Assem., Senate Proceedings, June 14, 1990, at 14), but nothing in the legislative history

          indicates an intent to deprive persons convicted of Class X offenses from receiving program

          credit on other convictions.

                                                      -8-
       No. 1-17-2372


¶ 20         Due to the absence of pertinent legislative history, we turn to general principles of

          statutory construction. When a statute is ambiguous “the rule of lenity is appropriate.” People

          v. Lashley, 2016 IL App (1st) 133401, ¶ 63. The rule of lenity provides that ambiguous

          criminal statutes will generally be construed in the defendant’s favor. People v. Gutman,

          2011 IL 110338, ¶ 12; see also Whitney, 188 Ill. 2d at 97-98. Therefore, we adopt the

          construction that favors Malvin. Applying the rule of lenity, we find that section 3-6-3

          permits awarding enhanced programming credit against the part of a consecutive sentence

          that punishes an inmate for a crime not specifically listed as requiring exclusion from

          enhanced programming credit. See 730 ILCS 5/3-6-3(a)(2), (2.1) (West 2016). We hold

          Malvin may be awarded day-for-day credit under section 3-6-3(a)(2.1), multiplied by a factor

          of 1.5 for time spent participating in qualified programs, against his sentence for second

          degree murder.

¶ 21         The State does not contest Malvin’s calculation that his program participation totals 925

          full days. Multiplied by a factor of 1.5, the credit comes to 1387.5 days. As Malvin has been

          awarded the 925 days of day-for-day credit for that time, the enhanced programming credit

          available under section 3-6-3(a)(4) is 462 days. See People v. Montalvo, 2016 IL App (2d)

          140905, ¶ 19. Accordingly, we hold that, due to Malvin’s participation in programming while

          in custody at the CCDOC, he is entitled to an additional 462 days of credit against his 15

          year sentence for second degree murder.

¶ 22                                        III. CONCLUSION

¶ 23         Section 5-8-4 of the Code, as interpreted by the IDOC and the courts, has always

          permitted the IDOC to award different credits against separate parts of consecutive

                                                     -9-
       No. 1-17-2372


          sentences. We find that section 3-6-3 does not prohibit the IDOC from awarding an inmate

          serving consecutive sentences enhanced programming credit against the part of the

          consecutive sentence that punishes the inmate for a crime not specifically listed as cause for

          denying the credit. Hence, Malvin is awarded enhanced programming credit against his

          second degree murder conviction. For the reasons stated, we affirm the judgment of the trial

          court. However, pursuant to Illinois Supreme Court Rule 366(a) (eff. Feb. 1, 1994), we

          modify the mittimus to reflect 462 additional days’ sentence credit.

¶ 24         Affirmed as modified.




                                                    - 10 -
