People v. CaballeroPeople v. Caballero
Justice KARMEIER delivered the judgment of the court, with opinion:
The issues presented by this appeal are: (1) whether a reviewing court may grant the per diem monetary credit conferred by section 110-14 of the Code of Criminal Procedure of 1963 (
BACKGROUND
Defendant Eduardo Caballero was indicted for unlawful possession with intent to deliver 100 to 400 grams of a substance containing cocaine. After his arrest, he spent two day in jail, posted bail, and was released. A jury in the circuit court of Du Page County later convicted him of the offense and his bond was revoked the same day. He was remanded to jail, where he remained for an additional 116 days prior to sentencing. He was sentenced to 14 years’ imprisonment and, among other things, fined $6,300 based on the “street value” of the narcotics he was convicted of possessing. On direct appeal defendant did not raise any issue involved in this appeal and the appellate court affirmed his conviction and sentence. People v. Caballero, No. 2-03-0299, 347 Ill.App.3d 1117, 310 Ill.Dec. 810, 867 N.E.2d 123 (2004) (unpublished order under Supreme Court Rule 23).
Defendant later filed a pro se petition for postconviction relief, which was dismissed by the trial court as frivolous and patently without merit. On appeal, defendant argued that the trial court erred in dismissing his petition because it sufficiently alleged the gist of a constitutional claim of ineffective assistance of counsel. Defendant also claimed that pursuant to section 110-14, his street-value fine should be reduced by $590, which is $5 for each of
STANDARD OF REVIEW
Both of the issues raised on this appeal involve the interpretation of Illinois statutes. The interpretation of state statutes is a question of law, which this court reviews de novo. People v. Harris, 224 Ill.2d 115, 123, 308 Ill.Dec. 757, 862 N.E.2d 960 (2007); People v. Brooks, 221 Ill.2d 381, 388, 303 Ill.Dec. 161, 851 N.E.2d 59 (2006).
ANALYSIS
Section 110-14 provides in pertinent part: “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.”
The State argues, however, that defendant‘s claim under section 110-14 involves a statutory right and it is not cognizable in a postconviction proceeding. The Post-Conviction Hearing Act (
Neither the State nor the defendant has cited any Illinois cases dealing with a claim for a monetary per diem credit under section 110-14 being initially raised on an appeal in a postconviction proceeding and we have found none. However, People v. Wren, 223 Ill.App.3d 722, 166 Ill.Dec. 194, 585 N.E.2d 1216 (1992), People v. Andrews, 365 Ill.App.3d 696, 303 Ill.Dec. 83, 850 N.E.2d 888 (2006), and People v. Brown, 371 Ill.App.3d 972, 309 Ill.Dec. 526, 864 N.E.2d 767 (2007), are appellate court cases dealing with a sentencing credit under section 5-8-7(b) of the Unified Code of Corrections (
Section 5-8-7(b) provides that the offender shall be given credit against his prison sentence for time spent in custody as a result of the offense for which the sentence was imposed. In Woodard, 175 Ill.2d at 457, 222 Ill.Dec. 401, 677 N.E.2d 935, we noted and cited a number of cases in which the sentencing credit in section 5-8-7(b)
In Wren the court stated:
“Finally, defendant contends that he is entitled to credit for the original day spent in custody in this matter and argues that counsel‘s failure to raise this issue in post-conviction proceedings constitutes ineffective assistance. A sentencing credit issue of this type is not appropriately considered in an appeal from the dismissal of a post-conviction petition which did not raise the issue, but instead should be raised by filing a motion to amend mittimus in the trial court. However, `in the interests of an orderly administration of justice’ [citation], we will treat defendant‘s request as a motion to amend mittimus and consider it because an amended mittimus may be issued at anytime. [Citation.]” Wren, 223 Ill.App.3d at 731, 166 Ill.Dec. 194, 585 N.E.2d 1216.
The court then decided that defendant was entitled to an additional day of credit. It affirmed the judgment of the trial court dismissing defendant‘s postconviction petition and remanded the cause to the circuit court for issuance of an amended mittimus. Wren, 223 Ill.App.3d at 731, 166 Ill.Dec. 194, 585 N.E.2d 1216.
In Andrews defendant was entitled to 113 days of sentencing credit, but due to a clerical error in the presentence investigation, he was only given a presentence credit of 112 days. Andrews, 365 Ill.App.3d at 697, 303 Ill.Dec. 83, 850 N.E.2d 888. The claim for the additional day of presentence credit was not made in the trial court or on direct appeal of his criminal conviction. Defendant filed a pro se postconviction petition and later his appointed counsel filed an amended petition for postconviction relief. Andrews, 365 Ill.App.3d at 698, 303 Ill.Dec. 83, 850 N.E.2d 888. Neither petition made reference to the sentencing-credit error. The trial court denied defendant‘s postconviction petition. The sole issue raised on appeal of the denial of the postconviction petition was the sentencing-credit error. The State argued that defendant waived this issue because he failed to raise it in his postconviction petition. Andrews, 365 Ill.App.3d at 698, 303 Ill.Dec. 83, 850 N.E.2d 888.
The Andrews court held that unlike the defendants in People v. Jones, 211 Ill.2d 140, 284 Ill.Dec. 287, 809 N.E.2d 1233 (2004), and People v. Jones, 213 Ill.2d 498, 290 Ill.Dec. 519, 821 N.E.2d 1093 (2004), who were attempting to raise new constitutional challenges, Andrews was merely attempting to assert a different and purely statutory right to full credit for his presentence incarceration. Andrews, 365 Ill. App.3d at 699, 303 Ill.Dec. 83, 850 N.E.2d 888. The court stated that its holding is in accord with, and quoted, the holding in Wren. Andrews, 365 Ill.App.3d at 699-700, 303 Ill.Dec. 83, 850 N.E.2d 888. The Andrews court also noted that People v. Reed, 335 Ill.App.3d 1038, 270 Ill.Dec. 396, 782 N.E.2d 955 (2003), held that an issue of a sentence credit did not involve a substantial deprivation of a constitutional right, and deemed the issue waived where it was first raised on appeal from the dismissal of a postconviction petition. The court concluded that the better reasoned and more judicially efficient procedures follow the logic announced in Wren. Andrews, 365 Ill.App.3d at 700, 303 Ill.Dec. 83, 850 N.E.2d 888.
In Brown the defendant contended for the first time in a supplemental brief on appeal in his postconviction proceeding
Defendant in the Brown case filed a petition for leave to appeal and argued, among other matters, that the sentencing-credit issue could be raised for the first time on appeal from the dismissal of his postconviction petition and that the issue had not been forfeited. This court denied defendant‘s petition for leave to appeal and entered a supervisory order directing the appellate court to allow the State another opportunity to respond to defendant‘s request for additional sentencing credit; to determine the merits of defendant‘s sentencing-credit request and to grant him further sentencing credit, if required. The order also directed that the resolution of the sentencing-credit issue be incorporated into the appellate court judgment addressing all of the other issues. People v. Brown, 222 Ill.2d 579, 308 Ill.Dec. 326, 861 N.E.2d 657 (2006) (table).
The Brown court upon remand examined the Andrews case, in which the court held that it had the authority under Supreme Court Rule 615(b)(1) (
Appellate court cases which hold that a claim for sentencing credit under section 5-8-7(b) of the Unified Code involves a statutory right and is not cognizable in a postconviction proceeding are People v. Bates, 179 Ill.App.3d 705, 128 Ill.Dec. 574, 534 N.E.2d 1019 (1989), People v. Uran, 196 Ill.App.3d 293, 143 Ill.Dec. 51, 553 N.E.2d 758 (1990), and People v. Reed, 335 Ill.App.3d 1038, 270 Ill.Dec. 396, 782 N.E.2d 955 (2003). Each of those cases refused to consider the sentencing-credit issue. Reed also holds that a defendant who makes a sentencing-credit claim for the first time on appeal from the dismissal of a postconviction petition has forfeited the right (Reed, 335 Ill.App.3d at 1040, 270 Ill.Dec. 396, 782 N.E.2d 955) and Bates holds that he has waived his right (Bates, 179 Ill.App.3d at 709, 128 Ill.Dec. 574, 534 N.E.2d 1019).
We hold that a claim for per diem monetary credit conferred by section 110-14 of the Code of Criminal Procedure of 1963 is a statutory right (People v. Woodard, 175 Ill.2d at 457, 222 Ill.Dec. 401, 677
The defendant in this case is not, however, attempting to raise a new constitutional issue in his postconviction proceeding but is simply applying for a different and purely statutory monetary credit under section 110-14. See Andrews, 365 Ill.App.3d at 699, 303 Ill.Dec. 83, 850 N.E.2d 888. In Woodard we noted that “[s]ection 110-14 is silent concerning any time frame or procedural stage during which such application either must or can be made” (Woodard, 175 Ill.2d at 444, 222 Ill.Dec. 401, 677 N.E.2d 935) and quoted with approval the statement from People v. Scott, 277 Ill. App.3d 565, 214 Ill.Dec. 367, 660 N.E.2d 1316 (1996), that “`[g]ranting the credit is a simple ministerial act that will promote judicial economy by ending any further proceedings over the matter.‘” Woodard, 175 Ill.2d at 456-57, 222 Ill.Dec. 401, 677 N.E.2d 935, quoting Scott, 277 Ill.App.3d at 566, 214 Ill.Dec. 367, 660 N.E.2d 1316. The Wren case and the Andrews case each granted a claim for sentencing credit raised for the first time on appeal in a postconviction proceeding based on the rationale of a “ministerial act” and the “interests of an orderly administration of justice.”
While we hold that a claim for monetary credit under section 110-14 is a statutory claim and therefore not cognizable as a separate issue upon which to base relief under the Post-Conviction Hearing Act, we also hold that this statutory claim may be considered as an “application of the defendant” made under the statute and may be raised at any time and at any stage of court proceedings, even on appeal in a postconviction proceeding. Accordingly, if, as in this case, the basis for granting the application of the defendant is clear and available from the record, the appellate court may, in the “interests of an orderly administration of justice,” grant the relief requested.
The State also argues that defendant is not entitled to any credit under section 110-14 for the 116 days of his incarceration between the day of his conviction and the day of his sentencing but has not cited any cases supporting this argument. The State contends, however: (1) that section 110-14 states that “[a]ny person incarcerated on a bailable offense” shall be allowed the $5-per-day credit and section 110-4(a) of the Code of Criminal Procedure of 1963 defines bailable offenses as “[a]ll persons shall be bailable before conviction” (
Section 110-14 originally provided: “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 prior to conviction except that in no case shall the amount so allowed or credited exceed the amount of the fine.” (Emphasis added.) Ill.Rev.Stat.1965, ch. 38, par. 110-14.
Effective October 1, 1977, the legislature amended this section to delete the words
In addition to the legislative amendment, there are also several reported cases that have dealt with the issue raised by the State. People v. Bennett, 246 Ill.App.3d 550, 186 Ill.Dec. 461, 616 N.E.2d 651 (1993), involved section 110-14 and the State‘s argument that the defendant is not entitled to a monetary credit for the days he spent in custody after being found guilty but prior to being sentenced. The court rejected this argument and stated: “Here, the statute provides for the award of fine credit to a defendant who is incarcerated on a `bailable’ offense. The statute does not make a distinction between defendants who are financially unable to post bond and those who are denied the opportunity to post bond by the trial court. The statute also does not prohibit the award of credit for the period of incarceration after a guilty finding.” Bennett, 246 Ill.App.3d at 551-52, 186 Ill.Dec. 461, 616 N.E.2d 651. Other appellate court cases have consistently held that a defendant is entitled to credit under section 110-14 for time spent in custody after conviction but before sentencing. See People v. Raya, 250 Ill.App.3d 795, 803, 190 Ill.Dec. 353, 621 N.E.2d 222 (1993) (defendant was entitled to $5-per-day credit for 16 days pretrial incarceration as well as the 35 days’ incarceration between the end of his trial and sentencing); People v. Smith, 258 Ill. App.3d 261, 270, 196 Ill.Dec. 450, 630 N.E.2d 147 (1994) (defendant was entitled to the section 110-14 credit against a fine for all the days he was incarcerated up until the sentence); People v. McNair, 325 Ill.App.3d 725, 726-27, 259 Ill.Dec. 804, 759 N.E.2d 584 (2001) (defendant was entitled to credit toward his fine for 54 days of presentence custody).
This consistent judicial interpretation of section 110-14 is considered a part of the statute until the legislature amends it contrary to that interpretation. See Woodard, 175 Ill.2d at 444, 222 Ill.Dec. 401, 677 N.E.2d 935, citing Miller v. Lockett, 98 Ill.2d 478, 75 Ill.Dec. 224, 457 N.E.2d 14 (1983). The legislature recently amended section 110-14 by adding subsection (b), which specifically precludes a person incarcerated for sexual assault as defined in section 5-9-1.7 of the Unified Code of Corrections (
We hold that defendant is entitled to the credit of $5 per day for the two days that he spent in custody prior to posting bond and the 116 days he spent in custody following his conviction and prior to sentencing.
CONCLUSION
For the reasons set forth above, the judgment of the appellate court is affirmed.
Appellate court judgment affirmed.
Chief Justice THOMAS dissented, with opinion, joined by Justices FREEMAN and BURKE.
Chief Justice THOMAS, dissenting:
The majority‘s decision permitting a postconviction claim for monetary credit under section 110-14 contradicts the plain language of the Post-Conviction Hearing Act, this court‘s decisions construing that Act, and this court‘s decisions defining the scope of postconviction appeals. Accordingly, I am compelled to dissent.
The majority‘s analysis runs as follows. Section 110-14 of the Code of Criminal Procedure of 1963 creates a statutory right to a per diem monetary credit “upon application of the defendant.” However, “`[s]ection 110-14 is silent concerning any time frame or procedural stage during which such application either must or can be made.‘” 228 Ill.2d at 87-88, 319 Ill. Dec. at 369, 885 N.E.2d at 1049, quoting People v. Woodard, 175 Ill.2d 435, 444, 222 Ill.Dec. 401, 677 N.E.2d 935 (1997). Consequently, a section 110-14 claim “may be raised at any time and at any stage of court proceedings, even on appeal in a postconviction proceeding.” 228 Ill.2d at 88, 319 Ill.Dec. at 369, 885 N.E.2d at 1049.
The problem with this analysis is that, while section 110-14 may be silent as to whether monetary credit claims may be raised for the first time in a postconviction proceeding, the Post-Conviction Hearing Act is not, and neither is this court‘s jurisprudence construing the Act. Indeed, both the Act and the settled case law provide numerous bases for barring the adjudication of defendant‘s “purely statutory” (228 Ill.2d at 87, 319 Ill.Dec. at 368-69, 885 N.E.2d at 1048-49) claim in this context.
First, defendant‘s claim falls well outside the narrow class of claims authorized by the Post-Conviction Hearing Act. Under the Act, the only types of claims that may be asserted in a postconviction proceeding are those asserting “a substantial denial of * * * rights under the Constitution of the United States or of the State of Illinois.”
Second, defendant‘s claim falls outside the class of claims over which postconviction courts possess the jurisdiction to adjudicate. This court has explained that “[s]ection 1221 of the Post-Conviction Hearing Act is jurisdictional in nature and limits the subject matter reviewable under that Act.” (Emphases added.) People v. Ferree, 40 Ill.2d 483, 484, 240 N.E.2d 673 (1968). Accordingly, “jurisdiction in post-conviction proceedings is limited to situations in which `a substantial denial of rights under the Constitution of the United States or of the State of Illinois’ is alleged.” People v. Owens, 34 Ill.2d 149, 150, 214 N.E.2d 749 (1966), quoting Ill.Rev.Stat.1963, ch. 38, par. 122-1; see also People v. Ward, 48 Ill.2d 117, 120, 268 N.E.2d 692 (1971). Stated differently, postconviction courts lack the jurisdiction to adjudicate purely statutory claims. See, e.g., Owens, 34 Ill.2d at 150-51, 214 N.E.2d 749 (trial court lacked jurisdiction over postconviction claim that “derived wholly from * * * statute“). Here, the majority acknowledges that a claim for monetary credit under section 110-14 is “purely statutory.” 228 Ill.2d at 87, 319 Ill.Dec. at 369, 885 N.E.2d at 1049. Nevertheless, it goes on to hold that, in the “interests of an orderly administration of justice,” such claims may be raised and adjudicated for the first time in a postconviction proceeding. 228 Ill.2d at 88, 319 Ill.Dec. at 369, 885 N.E.2d at 1049. The majority nowhere reconciles this holding with the aforementioned cases, and neither does it explain how the “interests of an orderly administration of justice” will be served by the adjudication of legal claims in the absence of subject matter jurisdiction.
Third, defendant‘s claim falls squarely within a class of cases that this court has expressly identified as inappropriate for postconviction consideration. In People v. Mitchell, 189 Ill.2d 312, 329, 245 Ill.Dec. 1, 727 N.E.2d 254 (2000), this court held that “[s]tatutes do not confer constitutional rights, and the allegation of a deprivation of a statutory right is not a proper claim under the Act.” See also Owens, 34 Ill.2d at 150-51, 214 N.E.2d 749. Here, defendant is asserting a claim for monetary credit under section 110-14, which the majority concedes is a “purely statutory” claim. 228 Ill.2d at 87, 319 Ill.Dec. at 368-69, 885 N.E.2d at 1048-49.
Fourth, even if defendant‘s claim were of the type permitted by the Act and over which postconviction courts possessed jurisdiction, it nevertheless would be barred by the forfeiture doctrine. As this court has frequently explained, “[a] petition for post-conviction relief is not an appeal of the underlying judgment; rather, it is a collateral proceeding.” People v. Johnson, 206 Ill.2d 348, 356, 276 Ill.Dec. 399, 794 N.E.2d 294 (2002). As such, a postconviction proceeding allows inquiry only into issues “that were not, and could not have been, adjudicated on direct appeal.” (Emphasis added.) Johnson, 206 Ill.2d at 356, 276 Ill.Dec. 399, 794 N.E.2d 294. Here, defendant is asserting a statutory right explicitly set forth in the pretrial portion of the Code of Criminal Procedure, and all of the facts necessary to assert that right were available to him on direct appeal. Consequently, even if a section 110-14 claim could be asserted and adjudicated in a postconviction proceeding, defendant would have forfeited any such claim in this case.
Fifth, defendant‘s assertion of this claim for the first time on appeal from the dismissal of his postconviction petition is expressly barred by this court‘s decision in People v. Jones, 211 Ill.2d 140, 284 Ill.Dec. 287, 809 N.E.2d 1233 (2004). In that case, we held that “a [postconviction] defendant may not raise an issue for the first time while the matter is on review” and that ”any issues to be reviewed must be presented in the petition filed in the circuit court.” (Emphasis added.) Jones, 211 Ill.2d at 148, 284 Ill.Dec. 287, 809 N.E.2d 1233. This holding is categorical and contains no exceptions. Here, defendant‘s claim for monetary credit under section 110-14 was not presented in the petition filed in the circuit court. Consequently, defendant could not raise it for the first time on appeal from the dismissal of that petition.
In sum, then, to permit the adjudication of defendant‘s “purely statutory” claim in this case, the majority dispenses not only with the plain language of the Post-Conviction Hearing Act, but also with a good portion of this court‘s case law construing the Act. Were this the only means of affording a remedy to persons in defendant‘s position, I might understand the majority‘s willingness to go to such lengths. But this is hardly the case. On the contrary, defendants who are entitled to a claim for monetary credit under section 110-14 have a host of opportunities to obtain that credit, even at the postconviction stage. Obviously, a defendant may apply for the credit at the time of trial. Moreover, a defendant may apply for the credit for the first time on direct appeal. See Woodard, 175 Ill.2d at 457-58, 222 Ill.Dec. 401, 677 N.E.2d 935. And if the
For these reasons, I respectfully dissent from the majority‘s decision.
Justices FREEMAN and BURKE join in this dissent.