People v. Miller
960 N.E.2d 1286
Ill. App. Ct.2011Background
- Defendant Miller was charged with burglary and theft under $300; he posted bond on Oct 31, 2007 and was arrested next day for attempted burglary, remaining jailed on that charge; he did not surrender the bond in the burglary/theft case.
- On Dec 3, 2007, Miller pled guilty to theft under $300 with the State recommending a six-year sentence and the attempted burglary charge dismissed; he was released on bond until Jan 4, 2008.
- Miller received sentencing credit from Aug 29, 2007, through Oct 31, 2007, and did not move to withdraw his guilty plea.
- Miller filed a pro se postconviction petition alleging ineffective assistance of counsel for not objecting to double enhancement of sentence; the circuit court dismissed it on Nov 16, 2009.
- Miller appealed and later filed a pro se nunc pro tunc motion for additional sentencing credit, which the court did not rule on because jurisdiction had already vested on appeal.
- The appellate court ultimately affirmed the circuit court, holding the issue was forfeited on appeal and not properly raised, and declined to amend the mittimus unless the issue could be pursued under the cause-and-prejudice standard via a successive petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miller is entitled to additional sentencing credit for simultaneous custody. | Miller (State) contends credit should apply due to simultaneous custody. | Miller contends ineffective assistance prevented bond withdrawal, enabling credit. | Forfeited; no amendment to mittimus unless successively pursued. |
| Whether failure to revoke or withdraw bond was ineffective assistance of counsel. | State argues no ineffective assistance shown without proper petition. | Miller argues counsel failed to seek revocation, creating right to credit. | Not decided on direct appeal; de novo review limited; issue treated as forfeited. |
| Whether DuPree controls allowing amendment for credit despite failure to raise issue in postconviction petition. | DuPree suggested remand for mittimus credit when counsel failed to revoke bond. | DuPree not controlling here due to forfeiture and lack of record. | Court declines to follow DuPree; remedy via cause-and-prejudice successively. |
| Whether the defendant may raise sentencing-credit issues on appeal despite not raising them in petition. | Credit issues can be raised at any time as sentencing rights. | Issue must be properly raised in postconviction petition or successive petition. | Forfeited on appeal; cannot amend mittimus absent proper successive petition. |
| Whether the court should remand to amend mittimus to reflect additional credit if appropriate. | Credit entitlement justifies remand. | No basis without properly raised ineffective-assistance claim. | Affirmed circuit court; no mittimus amendment. |
Key Cases Cited
- People v. Arnhold, 115 Ill.2d 379 (1987) (defendant not in simultaneous custody until bond withdrawn; credit rules depend on withdrawal)
- People v. DuPree, 353 Ill.App.3d 1037 (2004) (remand for mittimus credit when counsel failed to revoke bond; sentencing-credit issue can be raised anytime but contingent on ineffective assistance)
- People v. Jones, 211 Ill.2d 140 (2004) (defendant may raise claims via successive petitions under cause-and-prejudice)
- People v. Coleman, 183 Ill.2d 366 (1998) (de novo review of postconviction dismissal; threshold for review)