People v. Dieu

698 N.E.2d 663, 298 Ill. App. 3d 245, 232 Ill. Dec. 572, 1998 Ill. App. LEXIS 522
CourtAppellate Court of Illinois
DecidedJuly 31, 1998
Docket4-97-0329
StatusPublished
Cited by24 cases

This text of 698 N.E.2d 663 (People v. Dieu) 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. Dieu, 698 N.E.2d 663, 298 Ill. App. 3d 245, 232 Ill. Dec. 572, 1998 Ill. App. LEXIS 522 (Ill. Ct. App. 1998).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

In January 1996, defendant, Travis L. Dieu, pleaded guilty to burglary (720 ILCS 5/19 — 1 (West 1994)). In February 1996, he was sentenced to 48 months’ probation, including 60 days of periodic imprisonment in the Vermilion County work-release program. In November 1996, the court revoked defendant’s probation, and in February 1997, he was sentenced to 62 months in prison with credit for 121 days served. Defendant appeals, arguing the trial court erred in determining his credit for time served. We agree and remand for issuance of a corrected order of judgment and sentence.

I. BACKGROUND

On October 5, 1995, defendant was arrested for residential burglary (720 ILCS 5/19 — 3(a) (West 1994)). He remained in the county jail until he posted bond on December 1, 1995 — a period of 56 days. In January 1997, defendant pleaded guilty to burglary (720 ILCS 5/19 — 1 (West 1994)) in exchange for the State agreeing to dismiss four misdemeanor cases already pending against him. He also agreed to make restitution owed to the victims of his crimes.

In February 1996, the trial court sentenced defendant to 48 months’ probation. His probation was contingent upon numerous conditions, including (1) paying restitution totaling $1,864, (2) paying court costs totaling $213, (3) abstaining from alcohol and illicit drugs, (4) taking random drug tests, (5) complying with curfew conditions, and (6) serving 60 days’ periodic imprisonment in a work-release program. In March 1996, defendant began serving his term of periodic imprisonment.

On September 18, 1996, defendant was arrested for violating his probation. The State filed a petition to revoke his probation, alleging he (1) used cocaine once, (2) used cannabis on three separate occasions, and (3) failed to abide by his curfew conditions. He remained in jail until he posted bond on November 21, 1996 — a period of 65 days.

In November 1996, the trial court conducted a hearing on the State’s petition and defendant admitted violating his probation. At the February 1997 sentencing hearing, the court heard evidence in aggravation and mitigation of defendant’s conduct. The court sentenced defendant to 62 months’ imprisonment with the Illinois Department of Corrections and credited him with 121 days already served. The court did not consult with defense counsel before determining defendant’s sentence credit.

Thereafter, defendant filed a motion to withdraw his admission and reconsider his sentence. Defendant alleged he did not understand the consequences of his admission and his sentence was excessive. The motion did not challenge the court’s determination of his credit for time served. In March 1997, the court denied defendant’s motion and this appeal followed.

II. ANALYSIS

On appeal, defendant asserts the court erred by failing to credit him with the 60 days of periodic imprisonment he served prior to his probation violation. See People v. Scheib, 76 Ill. 2d 244, 252, 390 N.E.2d 872, 875-76 (1979). Further, he contends his appeal has not been forfeited because he did not participate in the determination of his sentence credit or agree to the State’s calculation of his credit. However, if the issue has been forfeited, defendant argues his counsel provided ineffective assistance, resulting in substantial prejudice. See Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2063-64 (1984).

The State argues defendant is challenging the correctness of his sentence; therefore, this issue should have been included in his post-trial motion. See 730 ILCS 5/5 — 8—1(c) (West 1994). By failing to raise this issue before the trial court, the State argues defendant forfeited his right to appeal. See People v. Reed, 177 Ill. 2d 389, 390, 686 N.E.2d 584, 584 (1997). Additionally, the State asserts defendant was not afforded ineffective assistance of counsel nor was defense counsel’s failure to raise this issue plain error.

Initially, we note this court previously held a defendant forfeits his or her right to appeal the court’s sentence credit determination when (1) the record clearly indicates the court consulted with defense counsel regarding the credit defendant was due for time served, and (2) defendant failed to raise the issue in a postsentencing motion. See People v. Moore, 289 Ill. App. 3d 357, 363, 681 N.E.2d 1089, 1093 (1997); People v. Gwartney, 289 Ill. App. 3d 350, 356, 683 N.E.2d 497, 501 (1997). In both cases, this court found defendants’ acquiescence to the trial court’s sentence credit calculation precluded them from challenging the court’s determination on appeal. However, the supreme court partially vacated those decisions, ordering this court to grant the defendants additional days of sentence credit. See People v. Moore, 175 Ill. 2d 545, 688 N.E.2d 308 (1997) (nonprecedential supervisory order); People v. Gwartney, 175 Ill. 2d 539, 688 N.E.2d 308 (1997) (nonprecedential supervisory order). Consequently, we examine this issue anew.

In this case, we find the State’s reliance on Reed misplaced. The defendants in Reed argued their sentences were excessive. However, they failed to submit posttrial motions pursuant to section 5 — 8—1(c) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5 — 8— 1(c) (West 1994)) to the trial court before appealing the court’s sentencing decision. Section 5 — 8—1(c) of the Unified Code provides: “[a] defendant’s challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed within 30 days following the imposition of sentence.” 730 ILCS 5/5 — 8—1(c) (West 1994). The supreme court held section 5 — 8—1(c) of the Unified Code requires defendants to file a written postsentencing motion in the trial court to preserve sentencing issues for appellate review. Thus, the defendants forfeited their right to appeal the court’s decision. Reed, 177 Ill. 2d at 390, 686 N.E.2d at 584.

However, defendant is not simply challenging the correctness of his sentence or an aspect of the sentencing hearing. Rather, defendant appeals the trial court’s determination of his statutory right to credit for time served. When a statutory right is clearly mandatory, a defendant’s failure to raise the issue to the trial court will not forfeit his or her right to raise the issue on appeal, so long as raising the issue to the trial court is not a statutory precondition. People v. Woodard, 175 Ill.

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Bluebook (online)
698 N.E.2d 663, 298 Ill. App. 3d 245, 232 Ill. Dec. 572, 1998 Ill. App. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dieu-illappct-1998.