THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CASSIAN T. COLEMAN, Defendant-Appellant.
Docket No. 4-16-0770
Appellate Court of Illinois, Fourth District
November 27, 2017
2017 IL App (4th) 160770
Appeal from the Circuit Court of Macon County, No. 06-CF-448; the Hon. Thomas E. Griffith, Judge, presiding.
Illinois Official Reports
Appellate Court
People v. Coleman, 2017 IL App (4th) 160770
Judgment: Appeal dismissed.
Michael J. Pelletier, Jacqueline L. Bullard, and Mariah K. Shaver, of State Appellate Defender‘s Office, of Springfield, for appellant.
Jay Scott, State‘s Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Kathy Shepard, of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
OPINION
¶ 1 Defendant, Cassian T. Coleman, appeals from the trial court‘s denial of his
I. BACKGROUND
¶ 2 Originally, defendant was convicted of unlawfully delivering 900 grams or more of a substance containing cocaine, an offense he committed while having a prior conviction of unlawful delivery of a controlled substance (
¶ 3 On direct appeal, we remanded the case with directions to allow eight additional days of presentence credit, for the period of March 22 to 29, 2006. People v. Coleman, 391 Ill. App. 3d 963, 984 (2009).
¶ 4 On remand, the trial court awarded defendant the eight additional days of presentence credit.
¶ 5 Subsequently, defendant petitioned for postconviction relief. After an evidentiary hearing, the trial court denied his petition. He appealed again. We reversed the conviction and sentence, and we remanded the case with directions to resentence him for a lesser included offense: a violation of
¶ 6 On April 22, 2015, on remand, the trial court entered an amended sentencing judgment, which resentenced defendant to 21 years’ imprisonment for the lesser included offense and which allowed him presentence credit for 3317 days (March 22, 2006, to April 21, 2015).
¶ 7 On April 24, 2015, the State moved to amend the sentencing order so as to allow presentence credit for June 27, 2007, onward instead of March 22, 2006, onward.
¶ 8 On June 29, 2015, pursuant to the State‘s motion, the trial court entered a second amended sentencing judgment, which revised the presentence credit to 2923 days (June 27, 2007, to June 28, 2015), as provided in a docket entry for the previous day, June 28, 2015.
¶ 9 On August 3, 2016, defendant filed a pro se motion entitled “Motion To Amend and Correct Mittimus.” In the motion, he argued he was entitled to additional presentence credit for the 42 days he spent in jail and prison from March 22 to May 2, 2006 (we count 41 days), as well as the 215 days he was on house arrest from May 3 to December 8, 2006 (we count 219 days).
¶ 10 On October 14, 2016, the trial court held a hearing on the pro se motion. Defense counsel told the court it appeared to him, from his review of the docket entries in the case, that defendant had received all the presentence credit he was seeking in his pro se motion. Accordingly, the court denied the pro se motion.
¶ 11 On October 24, 2016, defendant filed a notice of appeal from the order of October 14, 2016. On November 10, 2016, the Office of the State Appellate Defender filed an amended notice of appeal, again from the order of October 14, 2016.
II. ANALYSIS
A. The Jurisdictional Prerequisite of a Timely Notice of Appeal
¶ 12 “Except as provided in [
¶ 13 To comply with this jurisdictionally significant procedure in
B. The Jurisdiction To Amend a Mittimus at Any Time
¶ 14 Defendant argues that, despite his filing of a notice of appeal more than a year after the entry of the second amended sentencing judgment, we have jurisdiction. The reason, he argues, is that “[a]n amended mittimus may be issued at any time” and he filed a notice of appeal within 30 days after the denial of his “Motion To Amend or Correct Mittimus.” People v. Quintana, 332 Ill. App. 3d 96, 110 (2002).
¶ 15 Cases holding that a mittimus can be amended at any time presuppose the existence of (1) a sentencing judgment, which is part of the record, and (2) a separate and distinct mittimus, or warrant of commitment, which is not part of the record and which conflicts with the sentencing judgment. People v. Wagner, 390 Ill. 384, 386 (1945); Quintana, 332 Ill. App. 3d at 110; People v. Miles, 117 Ill. App. 3d 257, 260 (1983). In the present case, a separate and distinct mittimus or warrant of commitment does not exist. Because it is the second amended sentencing judgment, rather than a separately issued mittimus, that defendant seeks to modify and because defendant failed to file a timely notice of appeal from the second amended sentencing judgment, we lack jurisdiction to grant him additional sentencing credit. See People v. Morrison, 2016 IL App (4th) 140712, ¶ 38 (Harris, J., specially concurring); id. ¶ 21 (majority opinion) (agreeing with Justice Harris‘s special concurrence).
¶ 16 Granted, in People v. White, 357 Ill. App. 3d 1070, 1072-73 (2005), the defendant filed a motion for additional presentence credit more than 30 days after sentencing, and the Third District held that the trial court had “retain[ed] jurisdiction to consider correcting nonsubstantial matters, such as amendment of the mittimus, after it ha[d] otherwise relinquished jurisdiction.” It appears, though, that the Third District regarded a mittimus as synonymous with a “sentencing order.” Id. at 1072. To be sure, since the passage of Public Act 84-622, § 1 (eff. Sept. 20, 1985), the sentencing order “‘constitute[s] the mittimus, and no separate mittimus need be issued.‘” (Emphasis omitted.) Morrison, 2016 IL App (4th) 140712, ¶ 35 (Harris, J., specially concurring)
C. The Jurisdiction To Enter Nunc Pro Tunc Orders at Any Time
¶ 17 The second doctrine that defendant invokes in an attempt to alleviate the jurisdictional problem is that “trial courts retain jurisdiction to correct nonsubstantial matters of inadvertence or mistake.” People v. Nelson, 2016 IL App (4th) 140168, ¶ 39. Nelson, however, was referring to the correction of a “simple error in arithmetic.” Id. The determination of presentence credit requires more than arithmetic. To determine presentence credit, the trial court must determine which days the defendant was “in custody as a result of the offense for which the sentence was imposed.”
¶ 18 True, we decided in the past that defendant was entitled to presentence credit for the additional period of March 22 to 29, 2006 (Coleman, 391 Ill. App. 3d at 984), but we are a different court from the trial court. When referring to “what the court actually decided in the past,” White means the court that made the clerical error, not a different court. (Emphasis added.) White, 357 Ill. App. 3d at 1072. In his “Motion To Amend and Correct Mittimus“—and also in this appeal—defendant challenges the trial court‘s substantive decision to award him presentence credit only for the period of June 27, 2007, to June 28, 2015. He contends that, under
III. CONCLUSION
¶ 19 For the foregoing reasons, we dismiss this appeal for lack of subject-matter jurisdiction.
Appeal dismissed.
JUSTICE APPLETON
APPELLATE COURT OF ILLINOIS