People v. Flaugher

III. CONCLUSION for lack above, dismiss both causes we set forth

For reasons jurisdiction.

Causes dismissed. JJ., POPE, concur.

APPLETON ILLINOIS, Plaintiff-Appellant, v. THE PEOPLE OF THE STATE OF FLAUGHER, Defendant-Appellee. RONALD D.

Fourth District No. 4 — 08—0484 Rehearing Argued April Opinion denied filed December 2009.— 2009.— January 2010. MYERSCOUGH, EJ., dissenting. (Patrick Burch, Attorney, Delfino, Charles H. State’s of J. Hardin Robert

Biderman, (argued), Attorneys Appel- and Anastacia R. all Brooks of State’s Office, counsel), People. late Prosecutor’s of for the (argued), Hardin, Fanning appellee. Edward J. of for opinion JUSTICE APPLETON delivered of court: 1991, defendant, October the trial court sentenced Ronald D. Flaugher, 15-year to two prison upon terms his convic (first murder) (Ill. attempt tions two counts of degree Rev. Stat. 1(a)(1)). 1991, 38, 4(a), ch. pars. stayed The court the execution of defendant’s sentence until he prison. was released from federal years serving custody, After in federal defendant filed a motion for declaratory judgment, a seeking County a declaration that his Calhoun concurrently sentence, thereby sentences should run with his federal entitling him to sentence credit for time in federal prison. served 2008, motion, granted ordering

In June defendant’s 15-year attempted sentences for first degree two murder concurrently run with each and other with his federal sentence. The (1) appeals. jurisdiction modify State We find the court lacked (2) 15-year mandatory two terms from consecutive to concurrent in ordering erred defendant’s state sentence to run with statutorily his federal sentence when the two were mandated to run We consecutively. judgment vacate court’s and remand with direc- tions.

I. BACKGROUND 9, 1990, information, charged July by On defendant with State (first murder) (Ill. 1991, Rev. Stat. attempt degree two counts of 1(a)(1)) brother, Thomas 4(a), shooting 38, pars. wife, shotgun July on Dorothy, with a then Flaugher, and Thomas’s land dispute regarding a a from shooting incident stemmed 1990. released Defendant was Thomas and defendant. partnership between 3, 1990, charged State August July 1990. On on bond superseding the issuance by with the same offenses defendant indictments. ar- bond, defendant was released on

On November while in the District charged and later Southern rested federal authorities (1) five conspiracy with to distribute of Illinois case No. 92—2559 (2) during a firearm cocaine, using carrying kilograms or more of (3) of a crime, possession drug-trafficking and in to a relation in the by a to the statement of facts According firearm convicted felon. (see Carson, 9 subsequent appellate decision United States reported (7th 1993)), other individu- Cir. several F.3d 579-81 In the a drug spring trade. als were involved drug traffick- agents confidential informant notified federal about investigation. Finally, on November ing, triggered which six-month organized. agents sale Federal controlled of cocaine was began surveillance and watched as the informant and various throughout day individuals met at several different locations role, provided he exchanging drugs and cash. As for defendant’s $50,000 to the the buyers. parties (except one of When all of defendant) location, designated at was arrested. arrived the each cocaine, Agents kilograms five and some of confiscated of vehicles, a was arrested agents weapons. found loaded Defendant $1,500 totaling cash few hours later with in his and bundled wallet $5,000 30, 1991, May jury his truck. On a defendant convicted 5, 1992, On the federal court defendant all counts. June sentenced prison. appealed, 235 months in He and his convictions Carson, at were affirmed. See 9 F.3d 592-93. 1991, August 5,

On after on his federal defendant convicted thereon, jury a charges County but he was sentenced Calhoun before (first murder). On attempt degree convicted him of two counts of 2, motion, 1991, posttrial challenging filed a October defendant instructions, evidence, strength jury of certain admission evidentiary The closing argument, rulings. the State’s and several trial court denied defendant’s motion. 4, 1991, to two

On October the trial court sentenced defendant terms, Dorothy that had 15-year prison finding specifically consecutive injured.” The court noted as follows: “severely been further taking federal offense [c]ourt is not into consideration the “This nothing to they might all hand That has at or what sentence down. proceeding do—it relate doesn’t to this at all. This is a totally separate proceedings in the County. [sic] Circuit Court of Calhoun happens What in the ]game.” ball[ Federal Court is a total other sentencing, After custody defendant was remanded to the of the federal marshal. 11, 1991,

On October the trial court entered the judg ment, stayed which stated as follows: “Mittimus is until defendant is custody released from Department of the United States Justice.” 13, 1992, Defendant appealed. August On this court affirmed People Flaugher, convictions and sentences. See v. 232 Ill. (1992). 864, App. 3d 598 N.E.2d 391 7, September

On his pro postconvic filed first se tion petition, alleging, alia, inter the trial court erred imposing prison consecutive terms because the evidence at trial not did reveal bodily that either victim injury justifying suffered severe consecutive appointed and, terms. counsel to represent defendant after hearing, a petition. timely appealed “dismissed” Defendant court’s order. Flaugher, This court affirmed See v. People dismissal. 1995) (September No. 4 — 94—0652 (unpublished order under 23). Supreme Court Rule 12, 1997, March postconvic-

On defendant filed pro his second se alia, trial, tion petition, alleging, inter the ineffective assistance postconviction, appellate 7, 1997, counsel. On June petition dismissed defendant’s as frivolous and patently without merit. On June pro defendant filed third postconviction se petition, alleging present the trial court had failed to the issue of whether the great bodily jury victims suffered harm to a for consider imposing ation before prison grounds. terms on He those sentencing judgment 12, 2007, claimed his January was void. On summarily petition, finding dismissed defendant’s the law 466, 490, set forth in v. Apprendi Jersey, New 530 U.S. 147 L. Ed. 2d (2000) (any 120 S. Ct. as a 2362-63 factor used reason to increase a jury proved beyond sentence must be submitted to a doubt) applied retroactively. reasonable could not be Defendant ap pealed, filing remand, appointment motion for for the of counsel and proceedings. for further This court allowed the motion and dismissed 2007) appeal. (May See No. People Flaugher, 4 — 07—0154 motion). (appeal appellant’s dismissed on 2008, defendant, April 24, counsel, a through On filed motion for (the that, declaratory judgment subject of this at the appeal), claiming 15-year prison time he was sentenced this matter to two consecutive terms, he had been yet pending charges. not sentenced on his federal sentencing sentencing The had the of the stayed judg- court execution

677 custody. Citing People from federal defendant was released ment until (“a (1998) 793, 795 889, 891, N.E.2d McNeal, App. 3d Ill. a not consecutively with sentence may not ordered to run be from argued prohibited the was yet that court imposed”), defendant to his run consecutive ordering that his consecutive state terms would the imposed not at yet that had been federal sentence —a sentence citing statutory author time he was sentenced state court. Without his ity, declaratory judgment that state sought defendant run to his sentence. were to federal prison, from federal On June defendant was released hearing on days later, and five the trial court conducted a defendant’s statement, declaratory judgment. opening defendant’s motion for his the claimed motion clarification “as to seeking counsel this was one 4th of against that back on October imposed [defendant] argued sentencing stay effectively He the ordered 1991.” that sentence, an consecutively defendant’s sentences to run his federal he impermissible yet pend result when had not been sentenced on his ing McNeal, Ill. at N.E.2d App. federal conviction. See 3d at 795. object subject-matter jurisdic-

The State did trial not the court’s Instead, serving the begin tion. State claimed defendant now should his he 15-year prison terms as had been from released federal prison custody. into state (his Wynona sister), presented testimony Hughes

Defendant (his (his Flaugher brother), nephew), Henry Flaugher Edward Curtis (his (his son), wife), himself. Flaugher Flaugher Donna and defendant They society, testified that was not threat to not at risk committing any crimes, further had his served federal sentence responsibility without incident. Defendant accepted testified regretted he shooting Dorothy. Thomas and Each witness blamed relationship Thomas for the deterioration between defendant him, shooting which had escalated into the incident. presented During closing argument, The State no evidence. attorney argued years he done is that “17 for what has these enough.” more than Counsel asked the trial court “direct sentence, On accordingly.” sentences be with concurrent hand, prosecutor argued other all specifically found that it was not the federal offense at considering Rather, prosecutor as a factor consecutive sentences. imposing argued, find- specifically the court consecutive terms after ing The injuries that the nature of the victim’s warranted such terms. prosecutor for an hearing opportunity asked for a continuance of present testimony granted the State’s victims. request for a continuance.

On June the hearing continued resumed. The State called Thomas He Flaugher. referred to defendant his and as “ex-brother” testified still though that he feared defendant even he has had no contact or family years. with him his in 15 Defendant had also shot at approximately Thomas a and month a half before the incident that resulted in criminal He charges. express said he “continue[d] to concern about [defendant’s] release.” He said defendant not had express contacted him to apologize. his remorse or to On cross-examination, por- defendant’s counsel had Thomas read tions where, from the trial transcript during testimony, his Thomas admitted that he had to kill slapped threatened defendant and had Curtis, son, prior to the incident. testi- shooting Thomas that, shooting, fied a result of pellet as he a on his suffered wound arm, which did not require surgery.

Dorothy Flaugher head, testified that shot her in defendant arm, hand, shotgun chest with pellets, causing injuries and requiring hospitalization. She said personal safety. she was still afraid her for that, She after shooting, testified threatening Curtis had exhibited her, behavior such following extremely closely toward as her in his shooting vehicle and toward her house. had apologized Defendant not to her either. rebuttal, Flaugher, defendant called Curtis who denied follow-

ing Dorothy or stalking firing weapon her home. He said toward prior shooting incident, to the Thomas had him twice—once assaulted by pulling him off of by striking his four wheeler and another time him in years He was old at face. the time. Flaugher

Donna in rebuttal the shooting testified incident Curtis, stemmed from Thomas’s violence toward sale of certain personal and property, the named owners of certain real She property. said longer exist; therefore, these no circumstances and defendant would not be a to the threat victims. incident,

Defendant testified that to the he and did prior Thomas not with and any personal problems have each other had never been physically longer violent toward each other. He said he is no a threat Dorothy. currently old. years Thomas or He testified that he was as a years He received an additional federal sentence three an County expected result of He to serve the Calhoun convictions. was from years supervised additional 10 release. If he were released custody, employment comply state he would secure and with all restric- tions of He the trial for a supervised his federal release. asked father,” stating chance to a viable citizen and a “become husband ended, finally as follows: “Whenever this whenever the altercation head, destroyed, I mentally physically, [sic] come to a I was it, right.” sorry help mentally and I’m I did and I couldn’t it. I wasn’t he court, testified trial by the questioning Upon [his] illegal anything be involved will never [he] never “will do— for the incident. remorse expressed his again He again, life ever.” counsel, testimony arguments considering After 8—4(b) of that section agreed, noted, parties and the trial Code) (Ill. (Unified St'at. Rev. of Corrections 8—4(b)) (“The the Unified Code impose not court shall 38, par. (a) unless, having regard in subsection provided except history and the offense circumstances of the nature and term is that such a defendant, opinion it is of the character of by the criminal conduct from further public required protect record”) in the set forth defendant, the court shall the basis for which as decision, the court found announcing its governed the decision. follows: that, years that, are now 17 “Now, all of we having said said a sitting in undoubtedly you have been

later, years where it’s 17 what weigh and measure during that time. I have federal cell public that the stand I should believe you me on the witness told *** in the and will remain safe they’re that safe should believe this. course of today, making of that determination process I look to in the

What fact, that, you into the years ago, is in went compared to 17 cell, you but also had no you only sat in a system not was, you that testified the one incident that problems, other than custody. to, in the one incident while doing that. education, process in the sought got education

You address that your family, going and I’m kept contact with You just very moment. here in a brief my public perspective, appeared it have from

How would year, time, it be one five you taken the whether perspective, had just road, years down the road to have years, years down the your brother and a letter to each of one line and addressed written sorry. [‘]I’m [’] and said your ex-sister-in-law $^ *** anything is much as affects me as thing probably that [T]he years, you for 17 lady sitting a behind who the fact that there’s right is the that there years, you, in has believed has believed revealed, everything else is you that factors in when character you can again, that the two of you do this spread apart, that won’t meaningful life. have diluting [sic] sincere, that she is not and I believe

I believe she going— that I am herself, large part[,] I base the decision and in is, that. about, what it you you and I think can see about to tell Flaugher, Mr. wrong, if I’m weigh it will heavy on me. It truly will because I my job seriously take here. And weigh heavy it will in the sense that I misread, have I misread. have and that’s something I try very do, that hard [not] to I you, and misread I things misread the going that are you on around point at this time.

So, stated, for the reasons I find that under the statute this should sentence, be concurrent you that should receive credit for the time Department Corrections, served the Federal you will be committed to Department the Illinois of Corrections so that they can administratively process you then, turn, in and if they they credit, apply find their the credit that the court has —as directed, you should in turn be released on three[-]year mandatory supervised release. going

Youare not today, free my but it’s belief that that will take place shortly.”

The court indicated that defendant would spent receive credit for time in federal custody beginning May 1991.

On June the trial court entered a written finding order as follows: coming hearing

“Cause on for on defendant[’]s motion to re[ ]consider presented. sentence herein. Evidence Court finds said sentence should [run] concurrent with federal sentence heretofore entered. protection Court finds further public is not neces- sary poses safety no threat persons. of other

That granted credit should be prison time served in federal and defendant should be Department] Illinois] remanded to computation Corrections for good 30, 1991, May time since mit- issue, timus to 2008[,] through 24, 2008[,] until June June (Emphasis corrected.” original.) in 24, 2008, On June an amended judgment was entered indicating that defendant had 15-year been sentenced to prison two terms to be served to each other and to defendant’s federal sentence. This appeal followed.

II. ANALYSIS The primary presented issue in appeal this is whether the trial jurisdiction court had in 2008 to reconsider the sentence imposed upon 1991. The State argues first that the court did not jurisdiction have because defendant’s motion untimely, was and therefore, the June sentencing judgment 2008 amended A is void. trial normally subject-matter court loses jurisdiction 30 after days a imposed. Flowers, 291, 303, sentence is People v. 208 Ill. 2d 802 N.E.2d

681 8—1(f) (2003). However, of the Uni- pursuant to section 1181 8—1(f)(West (730 2006)), specifi- a section which fied Code ILCS 5/5— revested with presented, cally addresses the issue authority to reconsider defendant’s jurisdiction and the subject-matter 1991 sentence. 8—1(f) (730 8—1(f) of the Unified Code ILCS Section 5/5— (West 2006)) as follows: provides unexpired sentence of previous

“A has a defendant who court for a crime in imprisonment imposed by an Illinois circuit subsequently sentenced to a term of [s]tate this who is by any district court of the imprisonment by another state or imposed imprisonment United States and by has served a term of who States, district court of the United and must the other state or unexpired imposed by the Il- prior return to serve the linois imposed may apply [c]ircuit [c]ourt to the court which sentence to have his sentence reduced. may

The circuit court time served on the sentence order imposed by the other state or district court of the United States be application for reduction of a credited on his Illinois sentence. Such (f) be made 30 sentence under this subsection after the defendant has shall within completed imposed by the sentence other state or district court of the United States.” People Bainter, 126 Ill. 2d N.E.2d (1989), supreme court addressed the issue of whether legislature violated the of the Illinois separation-of-powers clause (Ill. (f) §1) II, by enacting Constitution Const. art. subsection —a section appears jurisdiction which to revest the trial courts with over judgments. otherwise final The court held that the section was Bainter, separation powers. constitutional did not violate Ill. 2d at at legislature properly 533 N.E.2d 1071. The exercised (f). court, authority According its to the enacting subsection legislature may realized that in which the “special circumstances arise finality interests of are and the circuit court should be re- lessened jurisdiction previously vested with over a determined matter. type is the subsequent imposition of another expansion of circumstance that of the circuit court’s warrant jurisdiction.” Bainter, at 1071. 126 Ill. 2d at 533 N.E.2d subsequent imposition

Such is the case here. The circumstance” trial that allowed the “special sentence was earlier. regain jurisdiction years court to over the sentence statute, days after he Pursuant to the relevant defendant had 30 requested he in state completed his federal sentence to seek the relief 8—1(f)(West 2006). Defendant filed his mo- court. See 730 ILCS 5/5— release, began conducting prior tion two months to his the hearing days five after his release. The court entered its order days prison. within 30 of defendant’s release from federal find We his timely motion was and note that the State never raised a timeliness issue.

Despite the fact that neither defendant’s motion nor the trial 8—1(f) (730 ruling court’s on the motion relied on section ILCS 5— 8—1(f)(West 2006)), we nevertheless hold that the court had the 5/5— proper authority to consider the matter. The court allowed defendant to receive credit on his Illinois sentence for time served in federal 8—1(f). prison remedy exact contemplated section See 730 5— —the (West 8—1(f) 2006). ILCS 5/5— Code, According to the Unified a defendant has opportunities two to seek the relief he the trial requested, having court review upon foreign state-court sentence subsequent imposition of 8—1(f) (West 8—4(a), 2006); sentence. See 730 ILCS see also 5— 5/5— Bainter, 299-305, 126 Ill. 2d at at 5—8— N.E.2d 1068-71. Section 4(a) allows a trial court to order that an run concur Illinois sentence rently subsequently imposed foreign with a sentence if the defendant applies days foreign for such relief within 30 after the defendant’s 8—4(a) (West 2006). However, sentence is finalized. 730 ILCS 5/5 — 8—1(f), stated, previously section allows a trial court to award foreign penitentiary credit on an Illinois sentence for time served in a days if the defendant relief after he has applies such within 2006). 8—1(f) (West foreign completed his sentence. 730 ILCS 5/5 — case, solely timing Based on the of defendant’s motion in this we find 8—1(f), under rather than section proceeded section 5— 8—4(a), properly presented. considered the matter by an Il- imprisonment imposed “When a term of on a defendant subsequently linois circuit court and the defendant is sentenced to by imprisonment by a term of another state or a district court States, imposed the United the Illinois circuit court which order that the Illinois sentence be made concurrent imposed by with the sentence the other state or district court of apply the United States. The defendant must to the circuit court within 30 after the defendant’s sentence the other is finalized.” 730 ILCS state or district of United States 5/5— 4(a) (West2006). authority statutory pursuant find trial court had the We (730 8—1(f) (West 8—1(f) of the Unified Code ILCS section 5/5— 2006)) time defendant should receive credit for to consider whether However, sentence. prison against state-imposed in federal served the court to authority in the Unified Code that would allow we find no from two consecutive imposed, Illinois sentence as modify defendant’s 15-year prison 15-year prison terms to two concurrent terms. The authority to “reduce” a as set forth section 8—1(f) only refers to the allowing court’s discretion of a defendant 5— to receive credit time spent foreign prison. incarcerated in a See (West 8—1(f) 2006). 730 ILCS Neither this section nor other 5/5— section in the Unified Code authorizes a court reduce the state itself, beyond days from the date the sentence was 8—1(c)(West 2006) (the imposed. See 730 ILCS reduce 5/5— a upon a defendant’s motion filed within 30 sentence). imposition of the Judge

Because Pezman a finding made conduct defendant’s resulted great bodily harm, defendant’s two required sentences were to run consecutively to each other. In October sentencing court ordered defendant’s two state sentences to run consecutively to each other due to the severe bodily injury suffered Dorothy. See 111. 8—4(a). Rev. Stat. par. That sentencing judgment 1005— was not amended within 30 days entry, of its and it remains force today. Therefore, we find that the court in ordering erred (first two 15-year murder) prison attempt terms for degree to run concurrently with each other. The court jurisdiction lacked the to enter that order.

Moreover, while the trial court did have to consider whether defendant should be given credit on County his Calhoun sentences for time served in federal prison, the State claims that the court was without discretion to reconsider the sentence in such a 8—4(h) (730 manner because section of the Unified Code ILCS 8—4(h) (West 2006)) (state mandated that the three sentences 5/5— federal) imposed be to run consecutively. (h) Subsection provides as follows:

“If person charged with a felony a separate felony commits while pre[ ]trial on pretrial release or in county jail detention in a facility county facility, detention the sentences upon convictionof these consecutively felonies shall be served regardless of the order in judgments which the of convictionare entered.” 730 8—4(h)(West2006). ILCS 5/5— admits,

As the State published no apply decisions to the 8—4(h) mandatory-consecutive-sentencing provision of section federal felonies committed while on pretrial charge. release on a state However, we note that the supreme court applied provisions has 8—4(h) section when a subsequent felony was committed in another state. See People Clark, 183 Ill. 2d 700 N.E.2d (1998) (trial 1039, authority lacked to sentence the defendant to the agreed-upon six-year prison term as a concurrent while felony in the State of Missouri he committed

sentence when release). pretrial 8—4(h) (West 8—4(h) (730 ILCS claims section Defendant 5/5— 2006)) supports record nothing applicable not because “is on bond as well an offense while [defendant fact that the committed sentencing guide- fall under federal charges the fact the federal (the Circuit’s Carson, at 580-81 Seventh According to 9 F.3d lines.” case), defendant committed federal opinion from defendant’s judice. in the case sub pretrial release federal felonies while on part of his Further, authority for the second provides no apply not because that the statute does argument apply. guidelines statutorily mandated to that are clear that sentences

The law is run concur- they been ordered to consecutively are void if have run follows: Indeed, recently noted as rently. this court and the defendant mandatorily consecutive sentences are “Where sentences, the sentences are void sentenced to concurrent of consecutive sentences. remedy imposition remand for is to impose concurrent court’s decision to When trial [Citation.] authority void, appellate court has terms deemed prison not barred from appellate court is correct the sentence appeal limiting right to rules the State’s doing by supreme so increasing a defendant’s appellate court from prohibiting desire, simply Thus, can, if remand we so [Citation.] we sentence. make sentences order to to amend its for the trial court Davison, Ill. People v. 378 [Citation.]” already given consecutive. 648, (2008), other 1018, rev’d on N.E.2d 655 App. 3d 883 (2009). 545 233 Ill. 2d 906 N.E.2d grounds, 445, 448 107, 113, N.E.2d Arna, Ill. 2d People See also (1995). July on charges on bond on the current

Defendant was released on November charges He was arrested for 1990. federal authori sting operation. The a drug-trafficking as a result of of day operation in the participating -witnessed defendant ties felony while on separate federal committed the arrest. Defendant of chronological order charges. release on his state pretrial no is of respective sentences convictions and entry of the 8—4(h). People v. See of section applicability to the consequence (1989). 832, 833 N.E.2d Williams, App. 184 Ill. 3d 8—4(h) the Uni- of section language plain to the Pursuant (West 8—4(h) subject (730 2006)), ILCS fied Code 5/5— 8—4(b) relying on section sentences. mandatory consecutive no poses necessary and defendant is not public (finding protection safety threat to of other persons) to find defendant’s sentences should run to each other and concurrently to the federal sentence, erred, provision because only applies this nonmandatory consecutive situations. safety Public or other factors are not considered where the statute imposition mandates of consecu- tive Judge sentences. Because finding great Pezman made a bodily harm, consecutive sentences were mandated on charges. the state Because defendant was on pretrial release when he committed the federal charge, consecutive sentencing was mandated for that offense 8—4(b) also. Thus section had no application here. We vacate the trial court’s amended sentencing judgment entry and remand for the of an amended judgment, making the state sentences consecutive to each other and sentence, consecutive to his federal with no credit for time served in federal custody.

III. CONCLUSION For the foregoing reasons, we vacate the trial court’s June 2008, amended sentencing judgment and remand entry for the anof judgment amended in accordance with our decision set forth above. Order vacated and remanded with directions.

POPE, J., concurs.

PRESIDING JUSTICE MYERSCOUGH, dissenting: I respectfully dissent even though this defendant committed heinous crimes. The trial court here correctly applied the law even in the face of a maze of confusing sentencing I statutes. would affirm the trial court on grounds. number of The trial court jurisdic- lacked tion to increase defendant’s sentence for committing felony while on bond original because the judge stayed mittimus, is, sentenc- ing judgment, years, for 17 rendering the order causing void and court to lose to enforce it. Alternatively, the trial court did not, as the majority maintains, make the state consecutive sentences other, concurrent to each although the court did have the authority to reduce Further, those sentences. properly court granted defendant credit for time served on the federal sentence.

I. STAYING THE SENTENCING JUDGMENT FOR 17 YEARS

RENDERED THE ORDER VOID The October sentencing order, stayed which was for 17 years, is void. The original trial judge, Pezman, Alfred should not have stayed the written sentencing judgment for years. Judge 17 Pezman should have judgment entered and issued a requiring warrant federal authorities to turn defendant over to the Illinois authorities

686 authority to lacked the The court completion of his sentence. upon indefinitely: judgment suspend the requires law of the criminal

“The effective administration the law shall of a violation of guilty or is convicted pleads one who authority to has certainly punished, and no court promptly be duty It is the of indefinitely in such a case. sentence suspend is the conviction judgment at the term at which pronounce to trial, judgment[,] in arrest of a new had, upon a motion for unless adjudication, further is continued for cause the case or for other custody,is still defendant, being held in by recognizance or and the indefinitely sus charge. If sentence is required to answer judgment subsequently jurisdiction, and a court loses pended[,] the 61[, 65, Allen, Ill. 39 Smith] v. 155 (People[ex rel. entered is void. Barrett, [Ill.] 202 (1895)]; Boenert] v. People[ex rel. 569 N.E. 287[, 298, (1903)].) court, reserving judg by The N.E. 27 67 counts, jurisdic lost period indefinite as to seven ment for an judgment upon the them, mittimus was issued but the tion as to counts[,] court did not the first five properly entered to rel. People ex of sentence.” jurisdiction by any postponement lose (1919). 560, 562-63, 125 Leinecke, Ill. N.E. Fensky v. Schallman, 129 N.E. 295 Ill. People See also (1920) (“It suspended of the mittimus that if the issuance is the rule jurisdiction to time[,] court loses length an unreasonable it”). majority is what the sentencing judgment stay The enforce mandatorily consecu impose to jurisdiction upon relies to assume 8—-1(f)of Only section the federal sentence. tive state sentences The jurisdiction. here with affords the Unified Code court sentences defendant’s state authority to reduce trial court had Il order his sentence or of the federal days completion within 30 just-completed run linois sentence That is the federal sentence. completion of within resentence authority to and not very limited im been which has never mandatorily consecutive to a judge sentencing judge, original even posed considered— —or 8—4(h) attorneys at hearing, or the reconsideration the section at appeal. even on hearing CHANGE DID NOT ALTERNATIVELY, THE TRIAL COURT II. TO CONCURRENT SENTENCES THE STATE CONSECUTIVE DEFENDANT PROPERLY GRANTED AND SENTENCES SENTENCE THE FEDERAL ON TIME SERVED FOR CREDIT Concurrent Sentences Make the State Did Not A. Trial Court Each Other made trial court erroneously assert the and the State majority other. Defendant’s to each concurrent state court the two judgment only charges for that “the State declaratory motion asked any [flederal with [ly] run concurrent sentence appeal not the two state court charges.” argue Defendant does on for each, concurrently support to run nor the record to does and finding. Judge such a Greenlief s handwritten order the docket to entry therefor state sentence complete both order run order provided: with federal. The handwritten coming on hearing re[ ]con-

“Cause on defendant’s motion to presented. herein. Court sider sentence Evidence finds said [ly] [run] [flederal sentence should concurrent with sentence heretofore further is protection public entered. Court finds necessary safety poses [and] not no threat to of other original.) persons.” (Emphasis entry

The docket provided: present earing “Dft. with on to [¶] counsel. Mtn Reconsider the finding presented. [E]vidence Sentence held. Order sentence should [ly] protection [s]entence. run concurrent with of [flederal [F]inds public necessary. poses safety not Dft. no threat of to others. granted [C]redit for time [p]rison. [flederal served in Dft. remanded Dept, to II. computation good May of Corrections for of time since 30, 1991[,] 12, 2008[,] 24, 2008[,] through until June June as cor- rected with to [m]ittimus issue.” similarly

The transcript judge’s reflects the action intention sentence original defendant to his consecutive state sentences. did parties argue Judge

Neither Greenlief that the state consecutive sentences should be concurrent each other. [(prosecutor)]: court, indicated,

“MR. BURCH Please the as we it would be our hap- belief that the seriousness of the two offenses pened, they victims, the fact gravity that involvetwo then that the injuries of parties hereto, sustained necessitate under that consecutive, statute that we sentences be believe that any defendant has not of served the time these—either of these the present sentences at time. custody day

Wedon’t he believe has ever been our to serve one any charge[s]. just Judge of these an It’s not issue that Pezman specifically anything did not know about It his federal sentence. didn’t exist. There was no federal sentence he was consider- ing. staying.

There was no federal he was There was noth- ing do, he did authority that had—that he had other than is- mittimus, did, sue his which he he said in the must, by statute, the to the be consecutive due nature injuries offense, type nature of the of crimes. together? THE COURT: These two MR. BURCH: Correct. together

THE attempted COURT: The two murders must he consecutive? Correct, he him.

MR. which is all had before There was BURCH: else, years nothing and now we back 17 later. We could have come ago, years ago, here years been we could have been here we five years ago. have could been here We didn’t know when we would way knowing be be here. We had no when we would here. But, years the all those Mr. fact remains that that Flaugher got completely unrelated crime in an got he a incident, unrelated in an unrelated and he wants us to give ignore happened County? him and Is credit what Calhoun efficacy fact that giving people’s the court no to the two lives were severely by the impacted criminal conduct this defendant? not never has for that if he does do Defendant answered reason[,] apply in the For we ask the court to time state court. that law, I justice apply and and fact that think the victims have the safety and their they indicated continue to fear for their lives still [Sjtate that the sentences still need to be served the Illinois. you, give you THE I ask and I will the Fanning, COURT: Mr. will argue, I respect, in the same will ask opportunity to further but just I you, you question posed in the that process, address to Mr. Burch. Honor, I don’t

MR. Your that’s correct. write FANNING: comply stay I and statutes. must and within the boundaries law guidelines reads and what the case reads. of what statute One, not been a consecutive sentence ordered there could have by Judge imposed at the the sentence was for the Pezman time running charges be consecutive to that of federal. state to imposed being charges were not at that The the federal reason time, says consecu- you case law cannot make the sentences amount, not to an and since the sentence was tive indeterminate courts, it could be determined at by determined the federal not that time to be consecutive. (b), actually question subparagraph here is under sentence, impose says: The court shall not a consecutive

statute on, it states in the except, goes thing specifically and it term, being if the court determines that such last few lines is term, from further [‘jrequired protect public defendant, for which the and the basis criminal conduct [’] [Ill. in the Stat. shall forth record. Rev. set 8—4(b).] par. 1005— need to make sure or not we also question

It is not a of whether furtherance of his actions with him more or in punish we need is, released, question Flaugher, Mr. if the victim. The or if do we believe and that in him were concurrent resulted released, ultimately being this court that it is does believe neces- and, sary going go to make it consecutivebecause he is out basi- cally, community. commit further crimes in the nothing going away

There is here to show that he is to throw opportunity last to make what little life he has left to do. He has years, argue my point. sat there for 17 and I don’t want That’s guidelines the basis or that’s the statute and that’s the for which we are here for.” judgment

The June 2008 amended have led to the confusion whether the trial court ordered the two state sentences to run concurrently to each other. The clerk typed “concurrent” after count I and count II but did not fill in the blank to indicate concurrent to what sentence. “COUNT DATE OF STATUTORY CITATION CLASS SENTENCE MSR OFFENSE OFFENSE (First

I X 38-Sec. 15 Yrs. attempt Chp 07/08/90 _Yr. 4(a) Degree Mos. Murder) ([XX] with) ([

and said sentence shall run concurrent ] consecutive to) the sentence on:_. COUNT DATE OF STATUTORY CITATION CLASS SENTENCE MSR OFFENSE OFFENSE (First

II 38-Sec. X attempt 15 Yrs. Chp 07/08/90 _Yr. 4(a) Degree Mos. Murder) ([X] with) ([ and said sentence shall run concurrent ] consecutive

to) the sentence imposed on:_.” However, the trial clearly gave credit for the time served in custody. federal

“[X] [c]ourt finds that the defendant is entitled to receive actually credit for custody time served in [specify from 05/30/91 date(s)] to from_to_from_to_.” 06/24/2008 Further, the trial clearly ordered the state sentences on count I and count II with, to, to be concurrent not consecutive federal case. sentence(s) IT

“[X] IS FURTHER imposed ORDEREDthat the count(s) ([X] with) ([ to) I & II be concurrent ] consecutive [flederal [c]ase [No.] sentences in case 90—30089—02WLB in the 7th District Federal Court in Illinois.” Indeed, recognized the trial court Judge that Pezman would not have run the state and charges concurrently if the matter had brought been days his attention within the federal 8—4(a) years to 17 later —at the

pursuant opposed to section 5— hearing herein. date of the

“THE COURT:

í¡í i|C ^5 reading in the case law as this statute I note with interest that (b), exists, provision, paragraph I has currently would note that the fact, changed, changed I at substantially not in don’t believe been there, interim, that I did read case law all in the but the case law in suggest previous, previous that to the 1991 statute which would effect, required that the defendant point that at some this was bring days imposition of the federal sentence this within 30 attention for a determination as to matter to the circuit court’s longer or concurrent. That’s no whether it should be consecutive in only example I I use that as an there. don’t see that as an issue. this, Flaugher. Mr. know, Judge suspect, obviously

I never talked with Pezman don’t this, it and have talked about didn’t know to talk about wouldn’t me, him, suspect talked with but I that and he wouldn’t have with substantially different the outcome of this could well have been imposed, have your federal sentence was would had 30 after today.” substantially going than it is to be been different what to make the two state consecutive Judge Had Greenlief intended concurrent, not have attached the consecutive he would he Pezman to his amended order which Judge sentence mittimus of (DOC). Department sent to the of Corrections doing you suggest- in are My only “THE concern what COURT: Judge Burch, tempted to do is to attach ing, what I would be Mr. term, an Pezman’s, is—and I’m not sure of the and show that this will, mittimus, Judge Pezman’s mit- you if that attach update, requirements [DOC] that timus, one on because of the put new mittimus which, quite frankly, Judge Pezman’s currently, [has] respect. may not meet reflect credit sign updated respect mittimus

I will an sentence, I served, reflect that it is to be a concurrent for time confuse, fact, clarify attempt in an hope to do that would although entirely possible intending, it’s we are [DOC] what from that.” confusion that results that there be section 5—8— applied the trial court Concededly, parties 4(b) Code, statutory for state provision of the Unified under reconsidera- indicate specifically does not sentences. The statute custody what factors from federal upon tion release prohibit does provision But that resentencing. consider should of the of- consideration sentences without imposition of consecutive of the character, protection and the need for the fense, the defendant’s public. except sentence impose “The court shall not (a) unless, the nature having regard for in subsection

provided history and character and circumstances of the offense defendant, required such a term is opinion it is of the defendant, by the further criminal conduct protect public from in the record.” 111.Rev. for which the court shall set forth basis 8—4(b). 1989, 38, par. Stat. ch. here, deciding whether to credit Judge

In essence Greenlief was state consecutive with the federal time. Even did the trial argument counsel in oral conceded he did not ask nor other, concurrently only each court run the state court sentences concurrently to the federal sentence. Reduce the State However,

B. the Trial Court Had Jurisdiction To Doctrine, or Code, Sentences Under the Unified the Revestment Sentencing Judgment Stayed Because the Was at- The trial court had to order the state consecutive (first murder) the federal tempt degree charges to run 8—1(f) Code, provides sentence under section of the Unified which as follows: previous unexpired

“A defendant who has a sentence of imposed by circuit a crime in imprisonment an Illinois court for subsequently [sítate this and who is sentenced to a term of by any imprisonment another state or district court of imprisonment imposed United States and who has served a term of States, by the or district of the United and must other state imposed by the Il- unexpired prior return to serve the Court[,] may which apply linois Circuit to the court sentenceto have his sentencereduced.

The circuit court order that time served on the United States be imposedby the other state or district court of the application credited on his Illinois sentence. Such for reduction (f) be made within 30 a sentence under this subsection shall imposed by the sentence completed after the defendant has (Emphases other state or district court of the United States.” added.) 8—1(f)(West2006). 730 ILCS 5/5— 8—1(f); See also Ill. ch. Ill. Rev. Stat. par. Rev. Stat. 8—1(f). 38, par. statute, consideration is to construing primary When the court’s Skillom, determine give People effect to the intent. v. legislature’s (2005). 117, 122 A court must App. 361 Ill. 3d 838 N.E.2d Davis, 199 Ill. 2d entirety. People consider the statute its (2002). “The most reliable indicator 766 N.E.2d which, statute, plain if legislative language intent is the 692

unambiguous, limitation, be exception, must read without or other Davis, 135, condition.” 199 Ill. 2d at 766 N.E.2d at 644.

However, necessity courts should also consider “the ‘reason and law, remedied, for the the be objects purposes evils to ” Parker, 135, 204, 209, be obtained.’ v. People 123 Ill. 2d 526 N.E.2d (1988), 263, 271, quoting People Haywood, 137 v. 118 Ill. 2d 515 N.E.2d (1987). 45, Further, legislature “if purpose 49 the intent and of the statute, modified, altered, can be determined from a ‘words be or supplied any repugnancy inconsistency even so as to obviate or with ” 210-11, legislative Parker, the intention.’ Ill. 2d at 526 N.E.2d at 123 543, 31, 138, Bratcher, 534, 2d 349 35 quoting People v. 63 Ill. N.E.2d (1976). “[wjhile Finally, penal strictly are to be construed in statutes accused, they rigidly favor of an must not be construed so as to defeat 213, legislature.” Parker, the intent of the 123 Ill. 2d at 526 N.E.2d at if language “[W]e 139. are not bound the literal of a statute language produces unjust contemplated by absurd or results not the 234, legislature.” A.G., 246, 172, In re Donald 221 Ill. 2d 850 N.E.2d (2006). Here, the that the trial court can reduce provides 179 statute sense, given the sentence. This makes that after the defendant’s served, federal sentence has been the state court has additional factors sentencing: it can consider in whether the federal trial court sentenced conviction, lengthier to a sentence due to the state imprisoned, defendant’s behavior while etc.

Moreover, the trial may apply give the revestment doctrine here to “A trial jurisdiction to reconsider the state sentences. court court jurisdiction modify judgment days entry its 30 after loses to vacate timely People motion filed.” v. judgment postjudgment unless (2007). Minniti, 65, 373 Ill. 3d 867 N.E.2d 1246 In some App. instances, jurisdiction the a court that parties may general “revest has personal subject[-]matter jurisdiction over the matter with both final particular 30-day period following judg over the cause after the Minniti, at at 1246. The revest App. ment.” 373 Ill. 3d 867 N.E.2d the loses only “applied ment doctrine has been where circuit court judg jurisdiction passage a matter because of the of time after over Gleason, App. Ill. 3d 906 N.E.2d ment.” Wierzbicki v. 388 (2009) doctrine outside the situa (refusing apply 15 the revestment expiration of the jurisdiction where a trial court loses because tion rejected the defendant’s appellate days judgment; 30 after made an order entered after argument that the revestment doctrine dismissed). appeal was appeal the notice of was filed valid when (which declaratory the trial Here, judgment motion for a sentence) an a motion to reconsider essentially treated as untimely motion. postjudgment

693 with can revest a court doctrine, parties the revestment Under (1) over the general jurisdiction the court has long so (3) (2) objection, actively without matter, parties participate judg prior merits of the inconsistent with the proceedings are (applying N.E.2d at Minniti, App. Ill. 3d at ment. untimely postjudg an defendant filed doctrine where the revestment object hearing and failed at the appeared ment motion but the State revestment, ap motion; the notice due to to the untimeliness of untimely postjudgment ruling peal filed within 30 People see also jurisdiction); court with appellate motion vested the (2006) (noting Price, 543, 546, 846 N.E.2d App. 364 Ill. 3d benefitting party the trial court considers the rationale “is that [citation], the retry the case judgment and started to ignored have set prior ruling to have the benefitting by its conduct consents party the [citation], party by its conduct waives benefitting aside or that the [citation]”). right jurisdiction the of the court question present are here. The trial court The revestment-doctrine factors actively parties the matter. The general jurisdiction had over fact, called the victims to participated hearing. in the In the State two required terms were testify on the issue of whether consecutive hearing, By objecting and not to the protect public. participating the sentencing the prosecutor essentially acknowledged prior the 67, Minniti, Ill. 3d at 867 judgment App. should be revisited. See 373 729, 732, 863 1248, citing People Gargani, App. at v. 371 Ill. 3d N.E.2d (2007) 762, trial court was revested with (finding N.E.2d 766 the the State untimely posttrial hear an motion where jurisdiction to objecting to the untimeli actively hearing in the without participated motion). Therefore, the trial court parties ness of the the revested jurisdiction imposed. with to reconsider state authority stay Alternatively, if the trial court had judgment length stay deprive and the of the did not sentencing jurisdiction retained here. jurisdiction, court of sentenced!,] convicted, person a accusedof a crime has been “When custody proper officer of and delivered into the mittimus, rendering judgment the court penitentiary under the case and is imposing the sentence loses over aside[,] vacate, modify judgment! ] power to set or without (1947)]; 421[, v. Putnam, People 183 (Peoplev. 398 Ill. 76 N.E.2d (1946)])[,] filing of a Hamel, 415, [64 392 Ill. N.E.2d 865 staying the mittimus does not have the effect of motion to vacate the defendant is delivered though the motion is filed before even Williams, 227[, 352 Ill. (People ex rel. Swanson v. penitentiary. (1933)].) Swanson, for a case, no motion 598 In this N.E. stay of mittimus was filed and defendant was delivered to the penitentiary while the mittimus was full force and effect. The judgment having executed, been the trial power court was without to set it aside and an order to that effect would have been a nul lity.” People Wakeland, 265, 269, 245, 15 Ill. 2d 154 N.E.2d (1958). Here, judgment Therefore, was never executed. the trial court had jurisdiction to reconsider very least, sentence. At the this court should remand for the trial court to determine whether the state sentences should be reduced.

C. Trial Authority Court Had the To Make the State Sentences

Concurrent to the Federal Sentences In the trial court made no mention about whether the state sentences would be consecutively served to the federal yet sentence that had not imposed. been Such an order would have been improper. People MacDonald, See ex rel. Middleton v. Ill. App. (1980). 3d 407 N.E.2d 776-77 the court ordered that defendant receive credit on his state consecutive sentences for the time served the federal penitentiary. The new judg provided ment that the state court sentences were to run concurrently with the Although federal sentence. no one cited the statute to the 8—1(f) court, section of the Unified Code provides that a circuit court may reduce a sentence and order that time imposed by served on the sentence the federal court be credited to the 8—1(f) (West 2008); Illinois sentence. See 730 ILCS Ill. Rev. Stat. 5/5 — 38, par. 8—1(f); ch. par. Ill. Rev. Stat. l(f). 1. State and Federal Sentences Are Presumed To Run Consecutively but Can Petition Concurrent Defendant for

Sentences by court, Unless stated otherwise the trial two or more sentences to the penitentiary presumed Illinois are to run concurrently. People v. (1970). Boney, 170, 174, App. 766, 128 Ill. 2d 262 In N.E.2d 768 contrast, penitentiary when one sentence is to a federal and one is to an penitentiary, presumed Illinois the sentences are to run consecu tively unless otherwise in specified Boney, the court’s order. 128 Ill. 174, 768; App. Greer, 2d at 262 N.E.2d at see v. also Thomas 143 Ill. 271, 275, 814, (1991); 2d Hesley 573 N.E.2d 815 ex rel. People (1947) (“sentences 311, Ragen, 396 Ill. 72 N.E.2d 314 of imprisonment places to different of confinement do not run concur rently”). specify Because the court’s order here did not and could not yet-to-be imposed the state sentences as consecutive to the federal consecutively to run presumed sentence, were the state sentences the federal sentence. for an trial court the state

Nonetheless, petition defendant can federal concurrently with the run the state sentences order that 8—4(a) upon that provides the Unified Code of Section sentence. 5— may sentence, later-imposed imposition to order the sentencing days of federal court within 30 ask the state 8—4(a) the Unified Code of concurrently. Section to run 5— follows: provides as Il- by an imposed on a defendant imprisonment is a term of “When subsequently sentenced defendant is circuit court and the linois of by a district court by another state or imprisonment of a term imposed States, circuit court which United the Illinois be made concurrent may that the Illinois sentence order of by other state or district court imposed with the within 30 apply to the circuit court United The defendant must States. imposedby the other days after the defendant’s sentence the United States is finalized.” 730 ILCS state or district of 5/5— 2006). 4(a) (West 8— 8—4(a). the trial 1991, 38, Again, par. also Ill. Stat. ch. See Rev. 1005— days for a applying about within 30 language court in 2008 noted the concurrent sentence but stated: previous, previous to suggest

“I did read case law would that which effect, required this was that point that at some the 1991 statute the defendant days imposition of the federal bring within 30 of determi- matter to the circuit court’s attention for a sentence this or concurrent. That’s nation as to whether it should be consecutive only I that as an longer I don’t see that as an issue. use no there. this, example [defendant].” there, referring the court was language apparently

That is still so 8—4(a) option (apply- indicating language section 5— event, any longer no at issue. ing days sentencing) within days a concurrent sentence within apply defendant did not 8—4(a), he did but required section his federal 5— 8—1(f). timely under section apply 5— 8—1(f) apply Code allows a defendant of the Unified Section 5— the defendant has after for a reduction in sentence within or district court by the other state completed imposed the sentence 8—1(f)(West 2006); also Ill. see ILCS the United States. See 730 5/5— 1991, ch. 8—1(f); Ill. Rev. Stat. 38, par. Rev. Stat. ch. 1005— 8—1(f). 8—1(f) that the circuit provides also par. Section by the time served on the sentence order See defendant’s Illinois sentence. other be credited to the 8—1(f)(West 2006); ch. see also 111.Rev. Stat. 730 ILCS 5/5— 8—1(f). 8—1(f); par. par. Ill. Rev. Stat. However, the situation in this case is further complicated by the 8—4(h) mandatory-consecutive-sentencing provision in section 5— Code, the Unified provides which as follows: “If person charged felony with a separate felony commits a while on pre[ release or in pretrial in county jail detention Jtrial facility county facility, detention the sentences imposed upon conviction of these felonies shall consecutively be served regardless of the order in judgments which the of convictionare entered.” 730 8—4(h)(West2006). ILCS 5/5— 8—4(h). See also Ill. Rev. Stat. par. provision This is mandatory. People Aleman, v. 355 Ill. App. 3d 823 N.E.2d (2005). 1136, 1141 case, this supports the record a finding defendant committed a trial, offense while on pretrial release. At defendant admitted the federal offense occurred he while was on bond in the Calhoun County case. “A court of rely review consider and upon entries in the common[-]law examining record when the propriety of consecutive People Ellis, sentences.” App. Ill. 3d 609 N.E.2d (1993) 967, 973 (finding that the record established that the defendant another). committed one offense pretrial while on release for court, Did the trial by giving defendant credit on his Illinois sentence for the time served the federal penitentiary, essentially circumvent the mandatory-consecutive-sentencing provision in section 8—4(h) of the Unified I Code? would find that it did not.

Section 5—8—4 of the Unified Code decrees how (West 2006). concurrent sentences shall be served. 730 ILCS 5/5—8—4 8—4(a) (b) Sections of the Unified Code direct the trial court when it can sentence defendants to concurrent or consecutive (b) (West 2006). 8—4(h) 8—4(a), sentences. 730 ILCS Section 5— 5/5— of the Unified Code mandates that sentences be consecutively served when one of the pretrial felonies is committed on release. 730 ILCS 8—4(h) (West 2006). 5/5— 8—1(e) (f) Code, Sections hand, Unified on the other original are not sentencing provisions but rather address a reconsidera- tion of inmates’ sentences who have served a a federal facility or another state and are returned to Illinois for service of an (f) (West 2006). 8—1(e), Illinois sentence. 730 ILCS provi- These 5/5 — grant sions to revisit defendant’s Illinois sentence and determine whether the Illinois sentence should be credited with time jurisdiction. served the other

Defendant timely applied here to the trial requested court and Illinois sentence run to his federal sentence. The court granted request after extensive evidence and deliberation. Such not an abuse of discretion. Greer, 2d 143 Ill. Further, erroneously relies the State convictions the federal and state proposition for the N.E.2d required There, the circuit court was consecutively. served must be the crime for which consecutively to run escape order the address section However, does not detained. Greer the defendant was 8—1(e) court to order 8—1(f), the trial permit which or section 5— 5— concurrently, no doubt because to run the federal and state sentences 1978, time the in at a when were multiple Greer’s to credit for award statute which revests the court with and not only other states’ convictions federal time served addressed other federal convictions: sentence of unexpired previous

“A defendant who has state[,] after sentence imposed by another and who imprisonment unexpired prior to service the a crime in Illinois must return by court ordered to sentenceE,]may the Illinois have his state[,] and the prior sentence in the other be concurrent with unexpired portion any order that time served on his return to Illinois shall prior the sentence in the other state be The other state shall be credited on his Illinois sentence. sentenceE,]which order copy imposing furnished with a of the order provide is released from confinement shall that when offender sentence, state, by by parole of the other whether or termination The court shall cause [DOC]. the offender shall be transferred notified of sentence at the time of commitment [DOC]to be such regarding provided copies and to of all records be with 8—1(f). 38, par. sentence.” Ill. Rev.Stat. 1005— however, Clark, in troubling, language People More is the 183 (1998), follows: Ill. 2d which states as N.E.2d Wilson[, “Indeed, 2d 692 N.E.2d [Peoplev.] this court in 181Ill. (1998),] impose it for the circuit court to held that was error because, statute, under the the circuit concurrent sentence a consecu authority impose any lacked the sentence other than Wilson, 411-12[, 1108]. 2d at 692 N.E.2d at tive sentence. 181 Ill. Wilson, the other Like the defendant in defendant here committed felony original from the with felonies while he was out on bond reason, lacked the charged. For this the circuit court which he was authority impose agreed-upon six-year term as a concurrent sentence.” supreme

The court does not address whether concurrently if a to run Clark could have ordered those sentences 8—4(a) later under section or timely petition had been filed under 5— 8—1(e) (f). Further, the court does not indicate when section or 5— release, [pretrial] defendant was sentenced Missouri. “While of Mis- felonies in the State however, defendant committed other [the] ultimately souri and four-year received a term imprisonment there.” Clark, 183 Ill. 2d at 700 N.E.2d at 1040. The trial court here did authority have the to order credit for the federal time on the state 8—4(a) 8—1(e) (f) sentences. Under either section or section Code, of the Unified a court the authority has to order an otherwise mandatory consecutive sentence to run for a defendant to receive credit for time served on the other sentence.

Further, 8—4(h) I question the reading wisdom behind section 5— of the Unified Code as mandatory note, all circumstances. Of legislature recently Code, amended the Unified including sections 8—1(a) (f) 8—4(a). and section recognizing While supreme court’s proceed cautiously admonition to gleaning when legislature intent of one another’s, as reflective of nonetheless, recent clarifications are enlightening here.

“Does not make changes, substantive but—recodifiesthem and puts them in a different order. And it codify does some Illinois Supreme Court decisions that implementation control the provisions. purpose effect of these is to make the provisions to reduce the judges attorneys easier for and—to understand and resentencing hearings number of improper caused *** dispositions. s¡; s¡; if; *** very significant change, It’s a yet time, but at the same provisions. there’s no substantive important But it’s because now judges it’ll be much easier for all attorneys to deal with [the] Criminal Code sentencing provisions. to understand the—the very convoluted, It’s been ing hearings.” hard to follow.It’s resulted in resentenc Assem., 95th Ill. Proceedings, May Gen. Senate (statements Cullerton). 2007, at 15-16 of Senator things they’ve “One of the years found over the that in regards sentencing you if you want to see what sentence if, apply fact, [sic] should to to a defendant he’s been found guilty, you it going through chapter takes three to four hours particular books to determine imple what sentence should be Commission, fact, mented. The CLEAR a look at took the... the... sentencing all of the and put laws now have that in a standard you go framework can where one section the statute and be necessary able to look at the sentences as based on crime com *** mitted. And that’s the essence of what Senate Bill 100 does. Basically, earlier, I codify as said all this does is go [c]odeso that we can to one section in the Criminal and be Code able to given particular determine what sentence should be for the crime committed.

# :¡; ^[*] *** public or a and... prosecutor So, organizes it so that this sentencing procedure part at one can look defender *** sense of it. make vv *** going help Bill that’s strictly reorganization just a This is court, but also judges, only the not practitioners, the prosecutors, are attorneys who defenders[,] private public *** defense counsel. $ $ $

*** trying adjust our Criminal step in terms of good [A] first Assem., Proceedings, House in this state.” 95th Ill. Gen. Codehere (statements Representatives at 31-34 November Durkin). Turner, Lindner, and 8—4(a) (West (730 8—4(a) ILCS The of section provisions 5/5— 2006)) felony convictions subsequent state regarding federal/other 8—4(e). (Previously imposed have been moved to section federal/ concurrently.) The run new felony convictions must still other state “(e) legislature CONSECUTIVE section is now entitled SUBSEQUENT TERM.” TERMS; NON-ILLINOIS imprisonment on imposed

“If Illinois court has a sentence of an a term subsequently sentenced to a defendant and the defendant is court, federal then by a another state or a imprisonment court of consecutively to the sentence run the Illinois sentence shall the federal court. That by the court of the other state or imposed court, however, may that the Illinois sentence order same Illinois imposed by the court of concurrently with the sentence run applies to court, only if the defendant state or the federal but other after the sentence that same Illinois within federal court is finalized.” by the of the other state or the (West2008). 8—4(e) 730 ILCS 5/5— Illinois clear that the statutory language here makes the Il federal unless consecutively subsequent run to a shall (The for reconsid they concurrently. provision run linois court orders concededly custody has upon of this release from eration issue sentencing statute However, may select which been stricken. People See he the former version. proceed under and has selected (1972).) 710, Hollins, 68, 71, 280 N.E.2d 51 Ill. 2d 8—4(h) (730 ILCS change did not section This amendment 8—4(h) (West 2006)) on bail felony committed while regarding 5/5— (730 8—4(d)(9) ILCS provision but did move that subsection 5— 8—4(d)(9) (West TERMS; 2008)), entitled “CONSECUTIVE 5/5 — language previous that the changes MANDATORY.”These indicate only bond refers felony while out on subsequently about a committed to a felony state court a federal offense as here. Section 5—8— —not 4(e) (730 8—4(e) (West 2008)), ILCS TERMS; “CONSECUTIVE 5/5— SUBSEQUENT TERM,” again NON-ILLINOIS permits to run concurrently. Otherwise, those sentences subsequent and state court run consecutively. convictions

Still, recognizing the cautious use of legislative gleaned, intent so the original statutory language expressed very First, this same intent. the statutory scheme up set in sections 5—8—1 and 5—8—4 of the Unified Code shows the legislature clearly recognized the difference between fact, state and federal light convictions. of People ex rel. MacDonald, Middleton v. 982, 85 Ill. App. (1980), 3d 407 N.E.2d 775 legislature amended grant section 5—8—4 to Illinois state courts the authority to reconsider its sentence within subsequent of a federal or other state sentence.

Sections 5—8—1 and 5—8—4 of the very specific Unified Code are mentioning when other state or federal offenses. Nowhere is that language “subsequent about federal or other states’ sentence” used 8—4(h) Code; section only Unified “felony” word used. The “felony” word does not include offenses committed in other jurisdictions contrary implication Palmer, to the of Clark and People v. (1990). 204 Ill. App. 3d 562 N.E.2d 375 “The ‘felony’ [Unified] Code defines as ‘an offense for which a imprisonment (Ill. sentence to death or to a term of in penitentiary year provided.’ for one 2-7.) or more is par. Rev. Stat. ch. ‘Offense’is defined as ‘a violation penal statute this of 2-12.” added.) (Emphasis State.’ Ill. Stat. par. Rev. Palmer, 204 App. Ill. 3d at 562 N.E.2d at 376. 8—4(h)

The “felony” in section of the Unified Code an is not of- fense committed in Further, another state or federal court. the trial jurisdiction would not have had to run the federal or other state’s sentence consecutively Only to the Illinois sentence. if kept custody in federal to serve his federal sentence previous before his required Illinois sentence could a defendant be consecutively serve his Illinois sentence to his federal sentence. Had custody defendant been returned to state serve Illinois sentence sentence, jurisdiction before his federal the trial court would have no authority or to determine whether the federal sentence would run consecutively. Conversely, the Illinois court had no authority to run the state court consecutively to a federal 8—4(h). sentence under section This statute applies only to state court felony convictions committed while on pretrial state court release. release or clearly “pre[ ]trial while legislature delineated facility, county detention facil- county jail in a pretrial detention 2006). added.) 8—4(h) (West In that

ity.” ILCS (Emphases 5/5 — court judge forth that a state statute, legislature clearly set same concurrently to a sentence consecutively or run a state sentence Here, defendant already in another state or federal court. 4, 1991, and in federal court was in state court on October sentenced impose a consecutive judge on June so that trial could neither stayed sentencing judg- Perhaps nor a sentence. he concurrent ment to decide run the after the federal clarify or how to imposed. sentence was 8—4(h),

Regardless, legislature, drafting if meant section 5— States, felony in another state or the district court the United legislature capable of and have so stated. should

Moreover, application consecutive state presumption federal court sentences makes no sense where the has yet to be to federal court. sentenced reasons,

For I trial these would affirm the court. SERVICES, THE Plaintiff-Appellant DEPARTMENT OF HUMAN PORTER, Defendant-Appellee Cross-Appellee, Cross-Appellant CANDY (The al., Defendants-Appellees Service et Civil Commission Cross-

Appellees). Fourth District No. 4 — 08—0894 Argued September Opinion filed 2009. December 2009.—

Case Details

Case Name: People v. Flaugher

Court Name: Appellate Court of Illinois

Date Published: Dec 23, 2009

Citation: 920 N.E.2d 1262

Docket Number: 4-08-0484

Court Abbreviation: Ill. App. Ct.