People v. Friese

2022 IL App (5th) 190241-U

• Court: Appellate Court of Illinois
• Decided: April 7, 2022
• Docket: 5-19-0241
• Status: Unpublished

Opinion

2022 IL App (5th) 190241-U NOTICE NOTICE Decision filed 04/07/22. The This order was filed under text of this decision may be NOS. 5-19-0241, 5-19-0242 cons. Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) Nos. 13-CF-749, 14-CF-1327 ) DONALD FRIESE, ) Honorable ) John J. O’Gara, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE WHARTON delivered the judgment of the court. Justices Welch and Vaughan concurred in the judgment.

ORDER

¶1 Held: Where the Illinois Department of Corrections treated the defendant’s two consecutive sentences as a single term of imprisonment, and credited the defendant for each day he actually spent in custody as a result of the offenses for which he was sentenced, the circuit court did not err in denying the defendant’s motion to clarify or to amend sentences, and since any argument to the contrary would be without merit, the defendant’s appointed appellate counsel is granted leave to withdraw, and the judgment of the circuit court is affirmed.

¶2 The defendant, Donald Friese, pleaded guilty to second degree murder and possessing

contraband in a penal institution, both Class 1 felonies. He was sentenced to (mandatory)

consecutive terms of imprisonment. There was no direct appeal. However, months after the

sentencing, he filed a motion to clarify the sentences, seeking to have presentence custody credits

granted against both of his sentences. He was unsuccessful, and now appeals. The defendant’s

appointed attorney on appeal, the Office of the State Appellate Defender (OSAD), has concluded

1 that this appeal lacks merit, and on that basis, OSAD has filed a motion to withdraw as counsel

(see Pennsylvania v. Finley, 481 U.S. 551 (1987)), along with a memorandum of law in support

thereof. OSAD properly gave notice to the defendant, along with a copy of the Finley motion and

memorandum. This court gave him ample opportunity to file a pro se brief, memorandum, or other

document explaining why OSAD should not be allowed to withdraw as counsel or why this appeal

has substantial merit, but the defendant has not taken advantage of that opportunity. This court

has examined OSAD’s Finley motion and memorandum of law, as well as the entire record on

appeal, and has concluded that this appeal does indeed lack merit. Accordingly, OSAD is granted

leave to withdraw as counsel, and the judgment of the circuit court is affirmed.

¶3 BACKGROUND

¶4 In May 2013, in case No. 13-CF-749, the defendant was charged with first degree murder.

720 ILCS 5/9-1(a)(2) (West 2012). Specifically, he was accused of creating a strong probability

of death or great bodily harm in performing the acts that caused the death of Mercedes Ferrarie-

Troisi. The defendant was arrested for that offense on June 7, 2013, and placed in the St. Clair

County jail. He remained incarcerated there, unable to post bond, through his sentencing hearing

on July 28, 2016. On September 26, 2014, while in pretrial detention on the murder charge, the

defendant allegedly possessed a razor blade. As a result, he was charged in case No. 14-CF-1327

with possessing contraband in a penal institution, a Class 1 felony. See 720 ILCS 5/31A-1.1(b),

(d)(6) (West 2014). Pursuant to statute, “the sentence imposed upon conviction for the offense of

possessing contraband in a penal institution shall be served consecutively to the sentence imposed

for the offense in which the person is *** serving pretrial detention.” 730 ILCS 5/5-8-4(d)(10)

(West 2014).

2 ¶5 In November 2014, the defendant was brought to trial for first degree murder. A jury found

him guilty. However, in May 2015, the circuit court, on motion of the defendant, vacated the jury

verdict and granted a new trial.

¶6 The new trial was never held. On July 11, 2016, in cause No. 13-CF-749, the State again

charged the defendant in the death of Mercedes Ferrarie-Troisi, this time with second degree

murder, a Class 1 felony. See 720 ILCS 5/9-2(a)(1), (d) (West 2012). The State, the defendant,

and defense counsel then appeared before the circuit court. The State announced the following

plea agreement: in case No. 14-CF-1327, the defendant would plead guilty to possessing

contraband in a penal institution, and he would be sentenced to imprisonment for a term of 4 years,

plus mandatory supervised release (MSR) for a term of 2 years, and in case No. 13-CF-749, he

would plead guilty to second degree murder, while the (original) charge of first degree murder

would be dismissed, and he would be sentenced to imprisonment for a term of not less than 4 years

and not more than 20 years (i.e., the statutory term of imprisonment), plus 2 years of MSR. The

State further announced that the sentence for second degree murder would be served consecutively

to the sentence for possessing contraband in a penal institution. Both defense counsel and the

defendant agreed that those were the agreed terms. The court informed the defendant that it would

bind itself to the agreement.

¶7 Then, the court admonished and questioned the defendant in substantial compliance with

Illinois Supreme Court Rule 402(a), (b) (eff. July 1, 2012), and it heard, and determined that there

was, a factual basis for the two pleas. See Ill. S. Ct. R. 402(c) (eff. July 1, 2012). The court found

that the defendant’s guilty pleas would be knowing and voluntary. In response to the court’s

questions, the defendant pleaded guilty to possessing contraband in a penal institution and to

3 second degree murder. The court accepted those guilty pleas and entered judgment thereon. The

court ordered a presentence investigation report and scheduled a sentencing hearing.

¶8 At the sentencing hearing on July 28, 2016, the court recalled the agreed-upon sentence for

possessing contraband in a penal institution—imprisonment for four years and MSR for two years,

with the sentence for second degree murder to be served consecutively. The defendant indicated

his understanding. The two parties presented witness testimony and other evidence in regard to

the second degree murder count. The parties made their arguments, and the defendant made a

statement in allocution, expressing his regret. Afterward, the court imposed a 4-year term of

imprisonment for possessing contraband in a penal institution, and a 12-year term for second

degree murder, with the sentences to run consecutively, to be followed by MSR for 2 years. The

court then admonished the defendant in accordance with Illinois Supreme Court Rule 605(b) (eff.

Oct. 1, 2001).

¶9 That same day, the court entered written judgments of conviction and sentence in each of

the two cases. The written judgment in case No. 14-CF-1327, for possessing contraband in a penal

institution, accurately reflected the four-year term of imprisonment and the two-year MSR term.

In addition, it specified that the defendant was entitled to receive credit against his four-year prison

sentence “for time actually served in custody *** from *** 9/26/14 to present.” The written

judgment in cause No. 13-CF-749, for second degree murder, accurately reflected the 12-year term

of imprisonment and the 2-year MSR term, and it accurately reflected that this prison sentence was

consecutive to the sentence imposed in case No. 14-CF-1327. In addition, it specified that the

defendant was entitled to receive credit against his 12-year prison sentence “for time actually

served in custody *** from *** 6/07/13 to present.”

¶ 10 The defendant did not file a motion to withdraw plea. He did not pursue a direct appeal.

4 ¶ 11 However, on November 10, 2016, the defendant filed in both of his cases a pro se

“defendant’s nunc pro tunc motion,” asking the court to order the Illinois Department of

Corrections (IDOC) “to give the defendant the time served while he was awaiting trial in St. Clair

County jail.” According to the defendant, IDOC’s calculation worksheet showed that he had not

received “the total amount of jail time credit this court has ordered.”

¶ 12 On January 12, 2017, the defendant filed a pro se “motion to clarify sentence and credit for

time previously served.” In this motion, the defendant cited to the two written judgments of

conviction and sentence, noting that in cause No. 13-CF-749, he was supposed to receive credit

for presentence incarceration from June 7, 2013, to July 28, 2016, or “36 months and 27 days,”

and in cause No. 14-CF-1327, he was supposed to receive credit for presentence incarceration from

September 26, 2014, to July 28, 2016, or “22 months and 2 days.” Adding these two time periods

together, the defendant calculated that he was supposed to receive a total credit of “58 months and

29 days.” Nevertheless, the defendant concluded, the IDOC had credited him for only “36 months

and 27 days.” He asked the court to inform the prison that he was entitled to a credit of “58 months

and 29 days.”

¶ 13 On March 7, 2017, the defendant filed, by appointed counsel, a “motion to clarify and/or

modify sentence.” The motion noted that in the sentencing order entered on July 28, 2016, the

court had stated that the defendant was to receive credit toward his prison sentence for the time he

was incarcerated in the county jail, and that he was to receive the credit “on both cases” to which

he had pleaded guilty on July 11, 2016. The motion went on to say that the IDOC had informed

the defendant that he would not be receiving credit against his prison sentence in case No. 14-CF-

1327. For relief, the motion sought either (1) a clarification order for the IDOC or (2) a modified

sentencing order to reflect the court’s “original intent.”

5 ¶ 14 On March 22, 2017, the defendant, defense counsel, and an assistant state’s attorney

appeared in court for a hearing on the defendant’s motion of March 7, 2017. Defense counsel

began by saying, “Judge, we’re really here to clarify the sentencing order of July 28, 2016.”

Defense counsel noted that in case No. 13-CF-749, the defendant had been sentenced for second

degree murder to a term of 12 years of imprisonment with “credit to be given for time served in

the St. Clair County Jail since June 7th, 2013,” while in case No. 14-CF-1327, he had been

sentenced for possessing contraband in a penal institution to a consecutive 4-year term of

imprisonment with “credit for time served when that Criminal Information was filed, which was

September 26th, 2014.” Because the two offenses “had independent credit for time served dates,”

defense counsel thought that the court had intended to award “credit for time served on each

offense.” Nevertheless, defense counsel reported, the IDOC had informed the defendant “that they

have no intention of giving him credit for time served on the contraband case.” Defense counsel

requested that the court enter either (a) an order “to modify the [IDOC’s] actions” or (b) an order

that “reflect[s] the number of days the Court intended [the defendant] to serve.” In response, the

assistant state’s attorney cited People v. Latona, an Illinois Supreme Court case from 1998, in

support of his argument that awarding a presentence credit for each of the two consecutive

sentences results in an impermissible “double credit” for the defendant. The State indicated that

Latona was “dispositive.”

¶ 15 The court, addressing defense counsel, opined that, “it seems like you’re wanting to

double-dip that.” Defense counsel replied, “And to a degree, I suppose so, Judge.” The court took

the matter under advisement.

6 ¶ 16 On February 28, 2018, in case Nos. 13-CF-749 and 14-CF-1327, the circuit court entered

a short-written order. It stated only that “upon review,” the defendant “is granted one year, nine

months and 28 days credit time served.”

¶ 17 Subsequently, the defendant filed a pro se motion for a rule to show cause. The defendant

explained that he had shown the order entered on February 28, 2018, to certain prison officials,

but those officials had said that they would not obey the order and would not give the defendant

any additional presentence credit.

¶ 18 On May 2, 2019, again in both cases, the circuit court entered a short-written order finding

that the order of February 28, 2018, had been entered in error, and vacating it. The court went on

to state that the order of July 28, 2016, “accurately reflected” the consecutive nature of the two

sentences and that, “accordingly, [the] sentence in 13-CF-749 shall run consecutive to the sentence

in 14-CF-1327.” The defendant perfected an appeal from this order.

¶ 19 ANALYSIS

¶ 20 The defendant appeals from the circuit court’s (apparent) denial of his motion to clarify or

to amend sentence. In his motion, the defendant essentially asked whether he had received the

correct number of days of presentence custody credit against his two consecutive prison sentences.

This court reviews such a question de novo. People v. Jones, 2015 IL App (4th) 130711, ¶ 12.

That is, this court performs the same analysis that the circuit court would perform. People v. Tyler,

2015 IL App (1st) 123470, ¶ 151. It may affirm on any ground substantiated by the record,

regardless of the reasoning employed by the circuit court. People v. Lee, 344 Ill. App. 3d 851, 853

(2003).

¶ 21 When a court sentences a defendant to consecutive terms of imprisonment for two felony

offenses, as it did in the instant case, the IDOC “shall treat the defendant as though he or she had

7 been committed for a single term.” 730 ILCS 5/5-8-4(g) (West 2016). So, the instant defendant’s

4-year prison term for possessing contraband, followed consecutively by his 12-year term of

imprisonment for second degree murder, requires the IDOC to treat the defendant as though he

had been committed for a single 16-year term. Furthermore, the defendant shall be credited against

that single term “for all time served in an institution since the commission of the offense or offenses

and as a consequence thereof.” Id. § 5-8-4(g)(4). “Since consecutive sentences are to be treated

as a single term of imprisonment, it necessarily follows that defendants so sentenced should receive

but one credit for each day actually spent in custody as a result of the offense or offenses for which

they are ultimately sentenced.” People v. Latona, 184 Ill. 2d 260, 271 (1998).

¶ 22 The defendant was held in presentencing custody for second degree murder from June 7,

2013, until his July 2016 sentencing hearing, and he was held in presentencing custody for

possessing contraband from September 26, 2014, until that selfsame sentencing hearing.

Therefore, from September 26, 2014, until sentencing, the defendant was held on both charges.

However, for each one of those days—i.e., for each day of the overlap—the defendant actually

spent just one day in custody, not two days. “[T]o allow an offender sentenced to consecutive

sentences two credits—one for each sentence—not only contravenes the legislative directive that

his sentence shall be treated as a ‘single term’ of imprisonment, but also, in effect, gives that

offender a double credit, when the sentences are aggregated, for each day previously served in

custody. That cannot be what the legislature intended.” Id.; see also People v. Inman, 2014 IL

App (5th) 120097, ¶ 26 (“when consecutive sentences are imposed, all time spent in custody is

credited only once against the aggregate term of the consecutive sentences”).

8 ¶ 23 CONCLUSION

¶ 24 The IDOC correctly treated the defendant’s 4-year and 12-year consecutive terms of

imprisonment as though the defendant had been committed to a single 16-year term of

imprisonment. It then credited him for each day that he served in the St. Clair County jail prior to

sentencing. The circuit court recognized the propriety of the IDOC’s actions by denying the

defendant’s motion to clarify or to amend sentence. Any argument to the contrary would lack

merit. Accordingly, the defendant’s appointed counsel on appeal, OSAD, is granted leave to

withdraw, and the judgment of the circuit court is affirmed.

¶ 25 Motion granted; judgment affirmed.