People v. Daily
Docket No. 4-15-0588
Appellate Court of Illinois, Fourth District
December 16, 2016
Modified upon denial of rehearing February 21, 2017
2016 IL App (4th) 150588
Illinois Official Reports
Appellate Court
People v. Daily, 2016 IL App (4th) 150588
Appellate Court Caption: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEVIN M.S. DAILY, Defendant-Appellant.
District & No.: Fourth District, Docket No. 4-15-0588
Filed: December 16, 2016
Modified upon denial of rehearing: February 21, 2017
Decision Under Review: Appeal from the Circuit Court of Coles County, No. 11-CF-577; the Hon. Mitchell K. Shick, Judge, presiding.
Judgment: Affirmed in part and vacated in part; cause remanded with directions.
Counsel on Appeal: Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel, of State Appellate Defender’s Office, of Springfield, for appellant.
Brian Bower, State’s Attorney, of Charleston (Patrick Delfino, David J. Robinson, and Thomas R. Dodegge, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel: JUSTICE TURNER delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Steigmann concurred in the judgment and opinion.
¶ 1 In December 2011, the State charged defendant, Devin M.S. Daily, by information with one count of aggravated driving under the influence of alcohol (
¶ 2 Defendant appeals, asserting (1) his 24-year sentence for aggravated DUI was outside the sentencing range, (2) he was entitled to 750 days of sentencing credit, (3) the assessments imposed by the circuit clerk should be vacated, and (4) he is entitled to monetary credit against his fines. We affirm in part, vacate in part, and remand the cause with directions.
¶ 3 I. BACKGROUND
¶ 4 All of the charges in this case relate to defendant’s actions on December 10, 2010, while he was on furlough before beginning a six-year prison term for burglary (People v. Daily, No. 11-CF-425 (Cir. Ct. Coles Co.)). On that date, defendant, who was under the influence of alcohol, stole a truck and later crashed into a car, resulting in the death of the car’s driver. On December 12, 2011, defendant was released from the hospital and taken to the Coles County jail. The State filed the initial seven charges against defendant on December 23, 2011. The record on appeal does not contain a warrant for defendant’s arrest on the charges in this case. Moreover, the record contains no mention of bond in this case until defendant’s guilty plea hearing.
¶ 5 On September 27, 2013, the State filed the last two charges of aggravated DUI and unlawful possession of a converted motor vehicle. That same day, the circuit court held defendant’s guilty plea hearing. The court found defendant was subject to Class X sentencing under section 5-4.5-95(b) of the Unified Code of Corrections (Unified Code) (
¶ 6 At defendant’s December 27, 2013, sentencing hearing, the parties noted defendant had pleaded guilty to the wrong count. Instead of the theft charge, defendant was to have pleaded guilty to unlawful possession of a converted motor vehicle. The circuit court vacated defendant’s guilty plea to the theft charge, and defendant pleaded guilty to unlawful possession of a converted motor vehicle. At the conclusion of the hearing, the court sentenced defendant to concurrent prison terms of 24 years for aggravated DUI and 14 years for unlawful possession of a converted motor vehicle. The court also ordered defendant to pay $5500 in restitution; a $100 Violent Crime Victims Assistance Fund fine; a $5 drug court fee; and a $1000 fee to the Mattoon police department, which is the DUI equipment fine (
¶ 7 On January 27, 2014, defendant filed a motion to reconsider his sentence, asserting his sentence was excessive and he was not subject to Class X sentencing. After a September 22, 2014, hearing, the circuit court denied defendant’s motion. Defendant appealed, and upon the parties’ agreed motion, this court remanded the cause for a new proceeding in strict compliance with Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014). People v. Daily, No. 4-14-0861 (Feb. 23, 2015) (unpublished summary order under Supreme Court Rule 23(c)).
¶ 8 On remand, defendant filed an amended motion to reconsider his sentence, again arguing his sentences were excessive and he was not subject to Class X sentencing. Defense counsel filed a Rule 604(d) certificate. After a July 14, 2015, hearing, the circuit court denied defendant’s amended motion to reconsider his sentence.
¶ 9 On July 21, 2015, defendant filed a timely notice of appeal, which stated a judgment date of December 27, 2013. On August 7, 2015, defendant filed an amended notice of appeal in compliance with Illinois Supreme Court Rules 606 (eff. Dec. 11, 2014); 303(b)(5) (eff. Jan. 1, 2015). Accordingly, this court has jurisdiction of this appeal under Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014).
¶ 10 II. ANALYSIS
¶ 11 A. Sentencing Range
¶ 12 Defendant challenges his 24-year prison term for aggravated DUI, asserting his sentence was improper because the sentencing range was 3 to 14 years in prison. The State disagrees, contending defendant was subject to Class X sentencing based on his prior convictions. Defendant’s argument raises an issue of statutory interpretation, and thus our review is de novo. People v. Millsap, 2012 IL App (4th) 110668, ¶ 27, 979 N.E.2d 1030.
¶ 13 In this case, defendant pleaded guilty to aggravated DUI under section 11-501(d)(1)(F) of the Illinois Vehicle Code (Vehicle Code) (
“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now (the date the Class 1 or Class 2 felony was committed) classified in Illinois as a Class 2 or greater Class felony and those charges are separately brought and tried and arise out of different series of acts, that defendant shall be sentenced as a Class X offender. This subsection does not apply unless:
(1) the first felony was committed after February 1, 1978 (the effective date of Public Act 80-1099);
(2) the second felony was committed after conviction on the first; and
(3) the third felony was committed after conviction on the second.”
The sentencing range for Class X felonies is a prison term “of not less than 6 years and not more than 30 years.”
¶ 14 The fundamental rule of statutory construction requires courts to ascertain and give effect to the legislature’s intent. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 180, 950 N.E.2d 1136, 1146 (2011). The statutory language, given its plain and ordinary meaning, best indicates the legislature’s intent. Pappas, 242 Ill. 2d at 180, 950 N.E.2d at 1146. Moreover, “[a] court must construe statutes relating to the same subject matter with reference to one another so as to give effect to the provisions of each, if reasonable.” Harris v. Thompson, 2012 IL 112525, ¶ 25, 976 N.E.2d 999. “A court presumes that the legislature intended that two or more statutes which relate to the same subject are to be read harmoniously so that no provisions are rendered inoperative.” Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 458-59, 781 N.E.2d 261, 267 (2002). Another fundamental rule of statutory construction is “where there exists a general statutory provision and a specific statutory provision, either in the same or in another act, both relating to the same subject, the specific provision controls and should be applied.” Knolls Condominium Ass’n, 202 Ill. 2d at 459, 781 N.E.2d at 267. When the statutory language is clear and unambiguous, a court must give effect to the statute’s plain meaning without resorting to extrinsic statutory-construction aids. Pappas, 242 Ill. 2d at 180, 950 N.E.2d at 1146.
¶ 15 In support of his argument, defendant cites the Fifth District’s decision in People v. Mathews, 304 Ill. App. 3d 514, 711 N.E.2d 435 (1999). In Mathews, 304 Ill. App. 3d at 519, 711 N.E.2d at 438, the defendant argued the circuit court erred in sentencing him to an extended term of six years’ imprisonment on his aggravated DUI under section 11-501(d)(2) of the Vehicle Code (
¶ 16 The State notes that, in People v. McCormick, 339 Ill. App. 3d 641, 648, 791 N.E.2d 112, 117-18 (2003), the First District disagreed with Mathews, stating the following:
“We believe the Fifth District Appellate Court’s holding that the legislature intended to preclude imposition of extended-term sentences for aggravated DUI creates an anomalous interpretation of both section 11-501(d)(2) and the extended-term statute, and that when properly viewed in the context of the entire sentencing scheme, section 11-501(d)(2) does not preclude the application of an extended-term sentence.”
The First District noted the extended-term statute made no exception for felonies arising out of the Vehicle Code, and thus, once a person has committed any felony offense, the extended-term statute could be invoked. McCormick, 339 Ill. App. 3d at 649-50, 791 N.E.2d at 118. Such a result allowed both statutes to be given effect and function in a harmonious manner. McCormick, 339 Ill. App. 3d at 650, 791 N.E.2d at 118. Moreover, the McCormick court found the extended-term sentencing provision’s purpose of punishing and deterring recidivist behavior was not at odds with the inclusion of aggravated DUI within the statute’s purview. McCormick, 339 Ill. App. 3d at 650, 791 N.E.2d at 118-19. Additionally, it would be absurd to exempt third and subsequent DUI offenses from the possibility of an extended-term sentence, as it “would give recidivist drunk drivers assurances that no increased penalties could be incurred for any subsequent convictions following a third DUI offense.” McCormick, 339 Ill. App. 3d at 650, 791 N.E.2d at 119. Last, the First District pointed out legislative comments to an amendment, which eliminated the sentencing range in the aggravated DUI provision after the Mathews decision, showed the legislature never intended to preclude the imposition of extended-term sentences for aggravated DUI offenses. McCormick, 339 Ill. App. 3d at 650, 791 N.E.2d at 119. Like the McCormick court, we do not find the analysis in Mathews persuasive.
¶ 17 This case deals with a habitual criminal statute that mandates Class X sentencing for repeat offenders who meet its requirements. It does not contain any language exempting convictions under the Vehicle Code, and the Vehicle Code as a whole does not show a legislative intent to exempt its felony provisions from the provisions of the Unified Code. The plain language of the aggravated DUI provision at issue indicates a legislative intent to punish more severely those whose crime results in death, and the habitual criminal statute punishes those who commit that crime as qualifying recidivists harsher than the normal offender. Thus, the habitual criminal statute is not at odds with the aggravated DUI provision. The habitual criminal statute is the more specific provision as it applies to a limited group of recidivists that meet its numerous requirements. Defendant’s interpretation of the two provisions renders the habitual criminal statute inapplicable to all offenses that contain a specific sentencing range. Reading the two provisions in harmony results in the aggravated DUI sentencing range applying in most cases unless the defendant meets the requirements of the habitual criminal provision. Moreover, we note our supreme court recently applied the Class X sentencing provision of the habitual criminal statute to a defendant convicted of aggravated DUI. See
¶ 18 B. Sentencing Credit
¶ 19 Defendant next asserts he is entitled to sentencing credit under section 5-4.5-100(b) of the Unified Code (
¶ 20 Section 5-4.5-100(b) of the Unified Code (
¶ 21 In support of his argument he should receive sentence credit from the date he was taken to jail, defendant cites People v. Robinson, 172 Ill. 2d 452, 667 N.E.2d 1305 (1996). In Robinson, 172 Ill. 2d at 462-63, 667 N.E.2d at 1310, our supreme court determined that, when a defendant is in simultaneous custody on two unrelated charges, section 5-8-7(b) entitles the defendant to sentencing credit on both offenses. The Robinson court noted that, “other than the custody requirement, there are no additional conditions which limit the application of section 5-8-7(b).” Robinson, 172 Ill. 2d at 462, 667 N.E.2d at 1310. There, while the defendant was released on bond, he was arrested for an unrelated offense and taken into custody. Robinson, 172 Ill. 2d at 454-55, 667 N.E.2d at 1306. After the defendant’s arrest on the new charge, the court increased the defendant’s bond, and the defendant then surrendered in exoneration of the bond. Robinson, 172 Ill. 2d at 455, 667 N.E.2d at 1306. The supreme court concluded that, once the defendant surrendered in exoneration of the first bond, he was in simultaneous pretrial custody on both charges and entitled to presentence credit on the first offense. Robinson, 172 Ill. 2d at 459, 463, 667 N.E.2d at 1308, 1310.
¶ 22 Defendant committed the offenses in this case on December 10, 2011, while out on a furlough from a prison sentence. On December 12, 2011, the hospital discharged defendant, and he was taken to jail. The record contains no warrant for the charges in this case. On December 23, 2011, the State filed the seven original charges in this case. The State later filed the two charges to which defendant pleaded guilty in September 2013. At defendant’s September 27, 2013, guilty plea hearing, defense counsel stated bond was never set in this case as defendant was taken directly from the hospital to jail to serve the prison sentence for which he was furloughed. The circuit court then stated defendant would be held without bond for purposes of sentencing. Thus, the record indicates defendant was not in custody on the charges
¶ 23 Citing the Third District’s decision in People v. Chamberlain, 354 Ill. App. 3d 1070, 1075, 822 N.E.2d 914, 918 (2005), defendant suggests the mere filing of charges in a subsequent case while a defendant is in custody on another case results in a defendant being in simultaneous custody in both cases. However, we agree with the Second District’s interpretation of Chamberlain, which states the following: “In a case such as Chamberlain, where the defendant is already serving a sentence on an unrelated offense, it is when he or she is charged, because, at that time, the defendant would be unable to be released because of the outstanding warrant and his or her failure to post bond on the new charge.” (Emphasis added.) Johnson, 401 Ill. App. 3d at 683, 937 N.E.2d at 194. To the extent Chamberlain may be interpreted to hold the mere filing of a charge in a subsequent case is sufficient for a person to be in custody on that charge absent a warrant and the setting of bond, we disagree with that holding. Accordingly, we find defendant is only entitled to sentencing credit for the period of September 27, 2013, to December 29, 2013, which is a total of 94 days. Thus, we remand the cause for an amended sentencing judgment reflecting defendant’s 94 days of sentencing credit.
¶ 24 C. Per Diem Credit
¶ 25 Defendant also requests that, if this court finds he is entitled to sentencing credit, then he should also be awarded the $5-per-day credit under section 110-14(a) of the Code of Criminal Procedure of 1963 (Procedure Code) (
¶ 26 D. Circuit Clerk Imposed Fines
¶ 27 Defendant asserts this court should vacate the fines imposed on him by the circuit clerk because they are void. The fines for which defendant seeks vacatur are the following assessments: $95 “fine,” $50 “Court,” $10 “Medical Costs,” $30 “Lump Sum Surcharge,” $10 “Child Advocacy Fee,” and $8 “State Police Ops.” The State agrees with defendant’s aforementioned contention. Defendant also seeks vacatur of the $2 “SA [State’s Attorney] Automation Fee” because it was a fine or not in effect at the time of his offense. The State disagrees with that argument. The propriety of the imposition of fines and fees presents a question of law, which this court reviews de novo. People v. Guja, 2016 IL App (1st) 140046, ¶ 69, 51 N.E.3d 970.
¶ 29 We recognize the Illinois Supreme Court abolished the “void sentence rule” established in People v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445, 448 (1995), which held any judgment failing to conform to a statutory requirement was void. People v. Castleberry, 2015 IL 116916, ¶ 1, 43 N.E.3d 932. The Castleberry opinion does not change the outcome here. Fines imposed by the circuit clerk are still void, and we have jurisdiction to rule on any amount improperly imposed. See People v. Gutierrez, 2012 IL 111590, ¶ 14, 962 N.E.2d 437 (stating “the appellate court had jurisdiction to act on void orders of the circuit clerk”). Moreover, a void judgment can be challenged “ ‘at any time or in any court, either directly or collaterally.’ ” Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103, 776 N.E.2d 195, 201 (2002) (quoting Barnard v. Michael, 392 Ill. 130, 135, 63 N.E.2d 858, 862 (1945)).
¶ 30 We agree with the parties the following are fines: $95 unspecified fine; the $50 court finance assessment (Smith, 2014 IL App (4th) 121118, ¶ 54, 18 N.E.3d 912); the $10 medical costs assessment (Larue, 2014 IL App (4th) 120595, ¶ 57, 10 N.E.3d 959); the $30 lump sum surcharge (People v. Warren, 2016 IL App (4th) 120721-B, ¶ 129, 55 N.E.3d 117); the $10 child advocacy fee (People v. Jones, 397 Ill. App. 3d 651, 660, 921 N.E.2d 768, 775 (2009)); and the $8 State Police operations assessment (Millsap, 2012 IL App (4th) 110668, ¶ 31, 979 N.E.2d 1030). Thus, the assessments were improperly imposed by the circuit clerk. Accordingly, we vacate those fines. However, we decline the State’s request to remand the case for the circuit court to impose the mandatory fines. This court agrees with the Third District’s conclusion our supreme court’s decision in Castleberry, 2015 IL 116916, ¶ 25, 43 N.E.3d 932, prevents a remand for the imposition of the statutorily mandated fines because that act would result in an impermissible increase in the defendant’s sentence on appeal. People v. Wade, 2016 IL App (3d) 150417, ¶ 13. The State is not without recourse, as it may file a petition for a writ of mandamus seeking to have the circuit court impose the statutorily mandated fines. See Wade, 2016 IL App (3d) 150417, ¶ 13.
¶ 31 As to the State’s Attorney automation fee, we continue to follow our decision in Warren, 2016 IL App (4th) 120721-B, ¶ 115, 55 N.E.3d 117. There, we held that, because the legislature intended the assessment to reimburse the State’s Attorneys for their expenses related to automated record-keeping systems, the assessment was not punitive in nature and thus constituted a fee. Moreover, we found “the circuit clerk could properly impose the assessment against defendant, even though the provision authorizing the assessment became law after defendant committed the offenses charged in this case.” Warren, 2016 IL App (4th) 120721-B, ¶ 115, 55 N.E.3d 117. Thus, we do not vacate the $2 State’s Attorney automation fee.
¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we vacate the imposition of the following assessments: $95 “fine,” $50 “Court,” $10 “Medical Costs,” $30 “Lump Sum Surcharge,” $10 “Child Advocacy Fee,” and $8 “State Police Ops.” We affirm the judgment of the Coles County circuit court in all other respects and remand the cause for an amended sentencing judgment consistent with this
¶ 34 Affirmed in part and vacated in part; cause remanded with directions.