                                       2017 IL App (3d) 140987

                                 Opinion filed October 5, 2017
                      Modified Upon Denial of Rehearing November 1, 2017
     ____________________________________________________________________________

                                                IN THE

                                  APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                                 2017

     THE PEOPLE OF THE STATE                        )      Appeal from the Circuit Court
     OF ILLINOIS,                                   )      of the 14th Judicial Circuit,
                                                    )      Whiteside County, Illinois.
            Plaintiff-Appellee,                     )
                                                    )      Appeal No. 3-14-0987
            v.                                      )      Circuit No. 14-CF-201
                                                    )
     ELIZABETH M. CLARK,                            )      Honorable
                                                    )      Stanley B. Steines
            Defendant-Appellant                     )      Judge, Presiding

     ___________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Presiding Justice Holdridge and Justice McDade concurred in the judgment and opinion.
     _____________________________________________________________________________

                                              OPINION

¶1          Defendant Elizabeth Clark was convicted by the trial court of escape for her failure to

     report to the county jail immediately after her discharge from a halfway house as ordered as a

     bond condition, and sentenced to a term of 30 months’ probation. She appealed her conviction.

     We reverse.

¶2                                              FACTS
¶3          Defendant Elizabeth Clark pleaded guilty to burglary and unlawful use of a debit card

     and was sentenced to a term of 30 months’ probation with a drug treatment requirement. Clark

     violated her probation and it was revoked. The trial court resentenced her to another term of 30

     months’ probation and 74 days in jail. She again violated the probation terms and admitted the

     allegations of probation violation.

¶4          In January 2014, the trial court released Clark on a $50,000 temporary recognizance

     bond. The trial court’s order included a number of conditions and provided that Clark “be

     released from custody” on January 10 “in the custody” of her father to attend substance abuse

     treatment at an inpatient facility. The order also required Clark to submit to a urine test

     “immediately upon returning to custody.” She successfully completed treatment, and in February

     2014, the trial court modified the conditions of her bond. Its order stated that upon her release

     from treatment, Clark “shall enter directly” into an extended residential care halfway house.

     Under the modified bond conditions, Clark was able to leave the halfway house for employment,

     medical needs, and 12-step meetings. The order further provided that Clark, upon release or

     discharge from the halfway house, was to “immediately return to the custody of Whiteside

     County Jail, using the most direct route of travel and without delay or departure therefrom.”

¶5          On June 5, 2014, Clark left the halfway house and failed to report to the jail. That same

     day, the State filed an application to increase Clark’s bond, and the trial court issued a warrant in

     the amount of $50,000. The State filed an information on June 6, 2014, charging Clark with

     escape based on section 31-6(a) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/31-

     6(a) (West 2014)). The information alleged that Clark, having been convicted of the felony

     offenses of burglary and unlawful use of a debit card, failed to report to the jail on June 6, 2014,




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     as required under terms of her recognizance bond. On June 16, 2014, Clark turned herself into

     the Whiteside County jail, where the warrant was served.

¶6          A stipulated bench trial took place in September 2014. A statement of facts was entered

     into evidence consistent with the facts as stated above. The facts also included Clark’s admission

     that she did not immediately report to the jail after leaving the halfway house, although she was

     aware she was required to do so. The trial court found Clark guilty of escape, stating that per the

     terms of her recognizance bond, she was required to return immediately to the Whiteside County

     jail after discharge from the halfway house. The trial court further stated that Clark had been

     convicted of burglary and unlawful use of a debit card and was awaiting sentencing on those

     offenses. The trial court denied Clark’s motion for a new trial and sentenced her to a 30-month

     term of probation. Clark appealed.

¶7                                               ANALYSIS

¶8          The issue on appeal is whether Clark was proved guilty of escape beyond a reasonable

     doubt. Clark argues that she violated the terms of her bond but was not guilty of the offense of

     escape. She asserts that the escape statute does not apply because she was not in custody when

     she failed to report as ordered.

¶9          The State is required to prove the elements of the offense beyond a reasonable doubt.

     People v. Patterson, 217 Ill. 2d 407, 447 (2005). Where considering the sufficiency of the

     evidence, the reviewing court will not set aside a conviction unless the evidence is so

     unreasonable, improbable or unsatisfactory such that it raises a reasonable doubt about the

     defendant’s guilt. Id. (citing People v. Evans, 209 Ill. 2d 194, 209 (2004)). When construing a

     statute, the trial court must ascertain and give effect to the legislature’s intent. People v. Whitney,

     188 Ill. 2d 91, 97 (1999). Where the language is clear and unambiguous, a court gives it its plain


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       and ordinary meaning. Id. In reviewing a challenge to the sufficiency of the evidence, this court

       considers whether, viewing the evidence in a light most favorable to the State, any rational trier

       of fact could have found the essential elements of the crime beyond a reasonable doubt. People v.

       Baskerville, 2012 IL 111056, ¶ 31. This court reviews issues of statutory interpretation de novo.

       Id. ¶ 18.

¶ 10           Section 31-6(a) of the Criminal Code provides:

               “A person convicted of a felony or charged with the commission of a felony *** who

               intentionally escapes from any penal institution or from the custody of an employee of

               that institution commits a Class 2 felony; however, a person convicted of a felony ***

               who knowingly fails to report to a penal institution or to report for periodic imprisonment

               at any time or knowingly fails to return from furlough or from work and day release or

               who knowingly fails to abide by the terms of home confinement is guilty of a Class 3

               felony.” 720 ILCS 5/31-6(a) (West 2014).

¶ 11           To commit the offense of escape, a defendant must first be in custody. People v. Campa,

       217 Ill. 2d 243, 259 (2005). Custody is not defined in either the Criminal Code, the Code of

       Criminal Procedure of 1963 (725 ILCS 5/100-1 et seq. (West 2014)), or the Unified Code of

       Corrections (Corrections Code) (730 ILCS 5/1-1-1 et seq. (West 2014)). Campa, 217 Ill. 2d at

       253, 260. Custody, defined in case law as incorporating both physical and constructive custody,

       is construed broadly and includes lesser forms of constraint than confinement. Id. at 253-54. A

       defendant released on bail or a recognizance bond is not considered to be in "custody" per the

       Corrections Code. Id. at 260 (citing People ex rel. Morrison v. Sielaff, 58 Ill. 2d 91, 93 (1974)).

       Bail is the security needed for release from custody. Morrison, 58 Ill. 2d at 94. Custody does not

       include the time a defendant is released on bail. People v. Ramos, 138 Ill. 2d 152, 161 (1990).


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¶ 12          In People v. Tillery, 141 Ill. App. 3d 610 (1986), and People v. Freeman, 95 Ill. App. 3d

       297 (1981), the courts focused on the degree of restraint placed on the defendants in deciding

       whether they were in custody for purposes of presentencing credit. Under that analysis, Clark

       enjoyed movements unrestricted by the court or jail personnel. Her bond restrictions included

       only participation in substance abuse rehabilitation and a return to the jail when completed. Clark

       was released to the halfway house under a recognizance bond like the defendant in Tillery. That

       defendant, who was ordered to attend treatment, was under close supervision, was required to

       report when he walked the one mile between his job and the facility, and was allowed only a 15-

       minute unsupervised shopping trip each day. Tillery, 141 Ill. App. 3d at 613. The reviewing court

       considered the “light” restrictions placed on the defendant and found he was not in custody

       during his time in treatment and not entitled to presentence custody credit. Id. at 613-14; See also

       Freeman, 95 Ill. App. 3d at 300 (finding defendant in treatment program was not in custody

       because of the minimal restrictions put on his freedom).

¶ 13          Similarly, Clark was ordered to attend treatment and then a halfway house as conditions

       of her bond. The court’s initial order stated Clark was released from custody to her father for

       transport to treatment. After her bond was modified following her successful completion of the

       treatment program, the court did not require that either jail or court personnel transport her to the

       halfway house. The modified bond conditions allowed Clark to leave the facility for various

       reasons, including work, medical needs, and 12-step meetings during her time there. The order

       did not require her movements be monitored by court or jail employees and they were not

       ordered to be involved in her return to the jail. The order stated that Clark was to “return to the

       custody” of the jail. These facts establish that Clark was not in custody when she failed to report

       to the jail as required by her bond conditions.


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¶ 14           We find applicable another area of distinction between bail and custody. While on bail,

       Clark was under the authority of the court, in contrast to a person in custody who is under the

       authority of the sheriff or the Illinois Department of Corrections (IDOC). In Campa, the court

       discussed custody to determine the defendant’s speedy trial claim. Campa, 217 Ill. 2d at 253.

       The Campa court distinguished between the sheriff’s authority and the court’s authority to

       release a defendant, concluding that courts have the sole authority to set and modify bail and to

       release prisoners. Campa, 217 Ill. 2d at 264. In People v. Hunt, 234 Ill. 2d 49, 53 (2009), the

       defendant was transferred from the sheriff’s custody to the custody of law enforcement to aid in

       an investigation and later returned to custody of the jail. The reviewing court distinguished

       Campa, finding the defendant was not free on bail and his transfer was authorized by statute and

       did not require a judicial order. Hunt, 234 Ill. 2d at 63-64. The Hunt court stated, “defendants

       released on bail or on their own recognizance are no longer in the custody of law enforcement.”

       Id. at 63.

¶ 15           The State relies on People v. Simmons, 88 Ill. 2d 270 (1981), as support for its claim that

       Clark’s conviction for escape was proper. In Simmons, the defendant argued that he could not be

       convicted for escape because he failed to return to jail from an independent day release but did

       not escape. Id. at 271. The supreme court found that under the Criminal Code, defendant’s

       failure to return constituted an escape, as he remained in the legal custody of the correctional

       center while on day release. Id. at 273. Simmons is distinguished. As discussed above, Clark was

       released from custody by virtue of her bail.

¶ 16           Because the State could not establish that Clark was in custody, a requirement inherent in

       the offense of escape, it could not prove she was guilty of escape beyond a reasonable doubt. We

       find her escape conviction cannot stand.


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¶ 17                                   CONCLUSION

¶ 18   The judgment of the circuit court of Whiteside County is reversed.

¶ 19   Reversed.




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