                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Riley, 2013 IL App (1st) 112472




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



District & No.             First District, Second Division
                           Docket No. 1-11-2472


Filed                      January 22, 2013


Held                       In defendant’s appeal challenging the assessment of a fee for the DNA
(Note: This syllabus       database and alleging that he was entitled to a per diem credit of $5
constitutes no part of     against his fines for each of the 210 days he spent on home confinement,
the opinion of the court   not just the 50 days the judge allowed, the appellate court vacated the
but has been prepared      DNA analysis fee on the ground that defendant’s DNA had already been
by the Reporter of         collected, and the per diem credit was vacated and the cause was
Decisions for the          remanded for recalculation to allow a credit only for the 50 days
convenience of the         defendant was actually incarcerated, since section 110-14 of the Code of
reader.)
                           Criminal Procedure does not permit a monetary credit for home
                           confinement.


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-CR-2102; the
Review                     Hon. Vincent Gaughan, Judge, presiding.



Judgment                   Order vacated in part and remanded.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Deepa Punjabi, all of State
Appeal                      Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary
                            Needham, and Michele Lavin, Assistant State’s Attorneys, of counsel),
                            for the People.


Panel                       JUSTICE CONNORS delivered the judgment of the court, with opinion.
                            Presiding Justice Harris and Justice Quinn concurred in the judgment and
                            opinion.



                                               OPINION

¶1          Following a bench trial, defendant DeJuan Riley was convicted of possession of
        cannabis. The trial court sentenced him to two years’ imprisonment and assessed nearly
        $1,200 in fines and fees, some of which were offset by credits. On appeal, defendant argues
        that the trial court erred in: (1) failing to give him a $5-per-day credit for all of the days he
        spent in home confinement; and (2) assessing a fee for the DNA database despite the fact that
        his DNA had previously been collected. For the following reasons, we vacate in part and
        remand for further proceedings.

¶2                                         BACKGROUND
¶3          Defendant was convicted of possession of cannabis. He does not challenge his conviction
        on appeal. Rather, he challenges the fines and fees assessed at sentencing and the calculation
        of the credits to be applied to his fines.
¶4          During the sentencing hearing, defense counsel argued that defendant deserved a credit
        against his sentence for the 210 days1 he spent on home confinement under the Cook County
        sheriff’s electronic monitoring program in addition to the 50 days spent in jail while awaiting
        sentencing. The State objected, arguing that home confinement should not be considered
        time “in custody” for which he receives credit because he only had to wear an electronic
        monitoring bracelet and did not have to comply with any reporting requirements. The court
        ruled:
                “[Electronic monitoring] alone is not required to be given credit. He had 50 days
            actually in custody. I’ll double it for a total of [100] days credit and give him some credit


                1
                 Although in his opening brief defendant claimed credit for 213 days, the State noted that
        he was only on home confinement for 210 days. In his reply brief, defendant agreed with the State’s
        calculation.

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         for the [electronic monitoring]. He’s not entitled to it as a matter of law.”
     The court then sentenced defendant to 2 years’ imprisonment and 1 year of mandatory
     supervised release and gave defendant 100 days’ credit toward his sentence pursuant to
     section 5-4.5-100(b) of the Unified Code of Corrections (Code of Corrections) (730 ILCS
     5/5-4.5-100(b) (West 2010)). Additionally, the court assessed $1,190 in fees, fines, and costs
     and applied a $500 credit toward those amounts pursuant to section 110-14 of the Code of
     Criminal Procedure of 1963 (Code) (725 ILCS 5/110-14 (West 2010)), which represented
     a $5-per-day credit for 50 days of presentence incarceration and 50 days on home
     confinement.

¶5                                        ANALYSIS
¶6       On appeal, defendant first argues that he was entitled to the $5-per-day credit for all 210
     days that he was in “pre-sentence custody” on home confinement, rather than the 50 days
     awarded by the court. Significantly, defendant acknowledges that he has “already completed
     his prison sentence” and does not seek a credit against his sentence.2 The only relief he seeks
     on appeal is the award of the per diem monetary credit against his fines, which is governed
     by section 110-14. In response, the State argues that defendant is not eligible for any
     monetary credit for time spent on home confinement because he was not “incarcerated” as
     contemplated by section 110-14.
¶7       Accordingly, the question presented is one of statutory interpretation, which we review
     de novo. People v. Beachem, 229 Ill. 2d 237, 243 (2008). Thus, we begin with the language
     of the statute to ascertain and give effect to the intent of the legislature in enacting it.
     Beachem, 229 Ill. 2d at 243. We give the words of the statute their plain and ordinary
     meaning and consider them in the context provided. Beachem, 229 Ill. 2d at 243.
¶8       Section 110-14 states:
         “Any person incarcerated on a bailable offense who does not supply bail and against
         whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for
         each day so incarcerated upon application of the defendant.” 725 ILCS 5/110-14 (West
         2010).
     The statute provides a per diem monetary credit against fines imposed upon conviction of
     the offense. People v. Hare, 119 Ill. 2d 441, 447 (1988). The credit is based on the number
     of days a defendant is “incarcerated *** on a bailable offense,” whether he is awaiting trial
     or awaiting sentencing after conviction. Hare, 119 Ill. 2d at 447; People v. Robinson, 391 Ill.
     App. 3d 822, 844-45 (2009). Although there is a great deal of case law analyzing different
     aspects of section 110-14, we have found only one dissenting opinion that has addressed the
     meaning of “incarceration” on which the amount of the credit is calculated. People v. Kuhns,
     372 Ill. App. 3d 829, 839 (2007) (Gilleran Johnson, J., concurring in part and dissenting in
     part).


             2
              Additionally, the challenge to the calculation of a sentencing credit after the completion of
     the sentence would be moot. See In re Darius L., 2012 IL App (4th) 120035, ¶ 20.

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¶9          In Kuhns, the defendant sought a $5 credit against his fines for the day that he was
       “arrested and held at the sheriff’s office for questioning.” The defendant acknowledged that
       he was not incarcerated at that time, but argued that he was subjected to “ ‘the practical
       equivalent of incarceration’ ” while being questioned. Id. The majority awarded the per diem
       credit to the defendant for that day, holding that section 110-14 allowed the credit for every
       full or partial day that he was “in custody” after his arrest. Kuhns, 372 Ill. App. 3d at 838.
¶ 10        The dissent then analyzed the specific language of section 110-14 and concluded that it
       only provides a per diem credit for days that the defendant is “incarcerated,” not when he is
       merely “in custody.” Kuhns, 372 Ill. App. 3d at 839 (Gilleran Johnson, J., concurring in part
       and dissenting in part). Justice Gilleran Johnson criticized the majority opinion for “treat[ing]
       the terms ‘custody’ and ‘incarceration’ as if they are synonymous. They are not.” Id. She
       further noted the cases relied upon by the majority similarly used the terms interchangeably.
       Id. at 840-41. However, after conducting a formal analysis of the language of section 110-14,
       Justice Gilleran Johnson concluded that the two terms had different meanings which resulted
       in different outcomes. Id. at 839. She determined that “custody” is a “very elastic term” that
       includes the “mere power, legal or physical, of imprisoning or taking manual possession, as
       well as actual imprisonment or physical detention.” Id.; see also People v. Campa, 217 Ill.
       2d 243, 254 (2005). That is, “custody” includes “actual imprisonment, as well as lesser
       restraints,” whereas “incarceration,” which is not defined in the Code or the Code of
       Corrections or any other relevant statute, is limited to “ ‘[i]mprisonment; confinement in a
       jail or penitentiary.’ ” Id. (quoting Black’s Law Dictionary 760 (6th ed. 1990)); see also
       Beachem, 229 Ill. 2d at 244 (where a word or phrase is not defined by statute, we must
       assume that the legislature intended the term to have its ordinary and popularly understood
       meaning and, therefore, we may rely on a dictionary definition to ascertain the meaning of
       an otherwise undefined word or phrase). Thus, applying the rules of statutory construction,
       Justice Gilleran Johnson concluded that the plain language of section 110-14 allowed the per
       diem credit for days that a defendant was actually, physically imprisoned, but not when he
       was merely “in custody.” Kuhns, 372 Ill. App. 3d at 840 (Gilleran Johnson, J., concurring in
       part and dissenting in part).
¶ 11        We find the reasoning in Justice Gilleran Johnson’s dissent to be persuasive and similarly
       conclude that section 110-14 of the Code only allows a per diem monetary credit to be
       awarded for each day that a defendant is physically incarcerated and not merely in custody.
       We find further support for our conclusion in Beachem, which was recently issued by the
       Illinois Supreme Court. In Beachem, the court was asked to determine whether section 5-8-7
       of the Code of Corrections, which was a predecessor to section 5-4.5-100(b), allowed a credit
       against a defendant’s sentence for time spent in the sheriff’s day reporting program, a
       community-based alternative to incarceration. Beachem, 229 Ill. 2d at 243. Section 5-8-7
       allowed for a credit against a defendant’s sentence for time spent “in custody” awaiting trial
       or sentencing. 730 ILCS 5/5-8-7 (West 2008); Beachem, 229 Ill. 2d at 244. The State argued
       that “custody” meant nothing less than “ ‘actual confinement or incarceration’ ” and
       excluded “lesser restraints” like the day reporting program. Beachem, 229 Ill. 2d at 244.
¶ 12        The court rejected the State’s argument and reaffirmed that “custody” has long been
       broadly construed to include actual imprisonment as well as a defendant’s “legal duty to

                                                 -4-
       submit to custody,” which may encompass “virtually any degree of state control.” Beachem,
       229 Ill. 2d at 252 (citing People v. Simmons, 88 Ill. 2d 270, 273 (1981)). Thus, the court
       makes a clear distinction between “incarceration” and “custody,” with the former referring
       only to actual, physical confinement and the latter including a more expansive duty to submit
       to legal authority. Beachem, 229 Ill. 2d at 253.
¶ 13       As such, in this case, defendant is only entitled to a per diem monetary credit for days
       that he was actually physically incarcerated and not for those days that he was on home
       confinement. Accordingly, we vacate that portion of the sentencing order applying the $5-
       per-day credit for 50 days that defendant was on home confinement. On remand, the circuit
       court must determine the number of days defendant was actually incarcerated to determine
       the amount of the monetary credit due.
¶ 14       We recognize that in some contexts, the sentencing credit provision in section 5-4.5-
       100(b) and the per diem monetary credit provision in section 110-14 are treated similarly.
       People v. Caballero, 228 Ill. 2d 79, 84 (2008) (citing People v. Woodard, 175 Ill. 2d 435,
       457 (1997)). However, as discussed above, the plain language of the statutes reveals that the
       calculus for the two credits is not the same. This is a particularly relevant distinction in light
       of the fact that a new amendment to section 5-4.5-100(b) of the Code of Corrections (730
       ILCS 5/5-4.5-100(b) (West 2010)) requires that days spent on home confinement be credited
       against a defendant’s sentence (see Pub. Act 97-697, § 5, eff. June 22, 2012), whereas section
       110-14 does not permit the monetary credit to be given for those days.
¶ 15       Defendant also contends that the $200 DNA analysis fee assessed at sentencing under
       section 5-4-3 of the Code of Corrections (730 ILCS 5/5-4-3 (West 2010)) should be vacated
       because his DNA is already in the database. The State agrees that this fee should vacated
       pursuant to the holding in People v. Marshall, 242 Ill. 2d 285, 303 (2011). Accordingly, on
       remand, the DNA analysis fee shall be vacated.

¶ 16                                     CONCLUSION
¶ 17       For the foregoing reasons, we vacate the per diem monetary credit applied to defendant’s
       fines and remand for a recalculation of the credit. Furthermore, we vacate the assessment of
       the DNA analysis fee.

¶ 18       Order vacated in part and remanded.




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