People v. Bagnell

809 N.E.2d 753, 348 Ill. App. 3d 322, 284 Ill. Dec. 187, 2004 Ill. App. LEXIS 442
CourtAppellate Court of Illinois
DecidedMay 3, 2004
Docket3-02-0327
StatusPublished
Cited by20 cases

This text of 809 N.E.2d 753 (People v. Bagnell) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bagnell, 809 N.E.2d 753, 348 Ill. App. 3d 322, 284 Ill. Dec. 187, 2004 Ill. App. LEXIS 442 (Ill. Ct. App. 2004).

Opinions

JUSTICE McDADE

delivered the opinion of the court:

A jury found the defendant, Robert E. Bagnell, Jr., guilty of driving under the influence of alcohol (625 ILCS 5/11 — 501(a)(2), (c — 1)(3) (West 2002)) and driving while his license was revoked (625 ILCS 5/6 — 303(a), (d) (West 2002)). He was sentenced to concurrent terms of five and three years’ imprisonment, respectively, for these offenses. On appeal, the defendant argues that he should receive nine rather than eight days’ credit toward his sentences for his presentence custody. The State agrees. The defendant also submits that the cause should be remanded for proper admonishments under Supreme Court Rule 605(a) (210 Ill. 2d R. 605(a)). We affirm the defendant’s sentences as modified and remand for proper Rule 605(a) admonishments and further proceedings.

BACKGROUND

The record shows that the defendant was arrested for the above-mentioned infractions on February 6, 2001. He posted bond and was released from custody on February 14, 2001.

At trial, the jury found the defendant guilty of the offenses as noted above. The defendant then was sentenced on May 2, 2002. Following imposition of the sentences, the judge admonished the defendant as follows concerning the procedures involved in appealing his case:

“Mr. Bagnell, it’s my duty to advise you that you have the right to appeal. You have a right to request the clerk to prepare and file a notice of appeal and the right, if indigent, to be furnished without cost with a transcript of these proceedings, including the trial or hearing. You also, if indigent, have a right to have counsel appointed on the appeal. Your right to appeal will only be preserved if a notice of appeal is filed in this trial court within 30 days of today.”

The sentencing order indicates that the defendant is to receive eight days’ credit toward his sentence for presentence incarceration. The defendant appeals.

ANALYSIS

I. Credit for Time Served

The defendant argues that he should receive nine rather than eight days’ credit toward his sentence for time served. The State agrees.

A defendant is entitled to credit against his sentence for time spent in custody prior to sentencing. 730 ILCS 5/5 — 8—7(b) (West 2002). Any fraction of a day in custody counts as a full day for purposes of calculating the credit. People v. Smith, 258 Ill. App. 3d 261, 630 N.E.2d 147 (1994).

The defendant was arrested on February 6, 2001, and posted bond on February 14, 2001. He is therefore entitled to a presentence credit of nine rather than eight days. Accordingly, we order that the mittimus be modified to reflect one additional day of credit for presentence custody.

II. Rule 605(a) Admonishments

The defendant submits that the trial court erred by failing to properly admonish him under Supreme Court Rule 605(a). He asks that we remand the matter for proper Rule 605(a) admonishments and the opportunity, thereafter, to file a motion to reconsider sentence.

We review questions concerning supreme court rule compliance de novo. People v. Hall, 198 Ill. 2d 173, 760 N.E.2d 971 (2001).

Rule 605(a) states certain admonishments a trial court must give a defendant who has pled not guilty after he has been convicted and sentenced. The admonishments concern the proper procedures to appeal his case. Prior to October 1, 2001, the rule required the court to advise such a defendant that (1) he has the right to appeal; (2) he must file a timely notice of appeal in order to perfect his appeal; (3) if indigent, he will be furnished with transcripts of the trial and hearings free of charge; and (4) if indigent and sentenced to a term of imprisonment, he will have counsel appointed on appeal. See 188 Ill. 2d R. 605(a).

Effective October 1, 2001, Rule 605(a) was amended to further advise the defendant concerning preservation of sentencing issues on appeal. The amended rule additionally required the court to admonish the defendant:

“B. that prior to taking an appeal, if the defendant seeks to challenge the correctness of the sentence, or any aspect of the sentencing hearing, the defendant must file in the trial court within 30 days of the date on which sentence is imposed a written motion asking to have the trial court reconsider the sentence imposed, or consider any challenges to the sentencing hearing, setting forth in the motion all issues or claims of error regarding the sentence imposed or the sentencing hearing;
C. that any issue or claim of error regarding the sentence imposed or any aspect of the sentencing hearing not raised in the written motion shall he deemed waived; and
D. that in order to preserve the right to appeal following the disposition of the motion to reconsider sentence, or any challenges regarding the sentencing hearing, the defendant must file a notice of appeal in the trial court within 30 days from the entry of the order disposing of the defendant’s motion to reconsider sentence or order disposing of any challenges to the sentencing hearing.” 210 Ill. 2d Rs. 605(a)(3)(B), (a)(3)(C), (a)(3)(D).

The trial court’s admonishments in this case did not conform with the newer form of the rule, because the court failed to advise the defendant of the need to raise sentencing issues in a timely motion to reconsider sentence in order to preserve these issues for appeal. A similar mistake was made by a trial court in People v. Williams, 344 Ill. App. 3d 334, 800 N.E.2d 168 (2003). In Williams, a different panel of this court stated that where the defendant failed to raise a sentencing issue on appeal, the trial court’s failure to properly admonish the defendant under Rules 605(a)(3)(B), (a)(3)(C), and (a)(3)(D) did not prejudice the defendant’s case. The Williams court held that, under such circumstances, strict compliance with the rule was not necessary and remandment was not required. We respectfully disagree with the Williams court’s holding for the reasons that follow.

In determining whether strict compliance is required, an examination of all of Rule 605 is instructive. Rule 605 concerns two categories of defendants who are in different procedural postures. Rule 605(a) applies to defendants who have pled not guilty and have gone to trial. Rules 605(b) and (c) concern defendants who have pled guilty. Each of the three sections, (a), (b), and (c), of Rule 605 states that the trial court “shall advise” the defendant concerning what procedures are required if the defendant wishes to appeal certain aspects of his case. 210 Ill. 2d R. 605. In other words, the admonishments in all three subsections of Rule 605 are mandatory.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Williams
917 N.E.2d 547 (Appellate Court of Illinois, 2009)
People v. Foote
906 N.E.2d 1214 (Appellate Court of Illinois, 2009)
People v. Stewart
Appellate Court of Illinois, 2006
People v. Burdine
839 N.E.2d 573 (Appellate Court of Illinois, 2005)
People v. Burdine Opinion corrected on 11/23/05
Appellate Court of Illinois, 2005
People v. Henderson
841 N.E.2d 872 (Illinois Supreme Court, 2005)
People v. Radford
835 N.E.2d 127 (Appellate Court of Illinois, 2005)
People v. Jones
833 N.E.2d 408 (Appellate Court of Illinois, 2005)
People v. Davis
826 N.E.2d 994 (Appellate Court of Illinois, 2005)
People v. Crowder
815 N.E.2d 1244 (Appellate Court of Illinois, 2004)
People v. Bagnell
809 N.E.2d 753 (Appellate Court of Illinois, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
809 N.E.2d 753, 348 Ill. App. 3d 322, 284 Ill. Dec. 187, 2004 Ill. App. LEXIS 442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bagnell-illappct-2004.