2022 IL App (5th) 190243-U NOTICE NOTICE Decision filed 04/12/22. The This order was filed under text of this decision may be NO. 5-19-0243 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 16-CF-1638 ) KEVIN GARY, ) Honorable ) Neil T. Schroeder, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court. Justices Wharton and Vaughan concurred in the judgment.
ORDER
¶1 Held: The defendant is not entitled to credit against his prison sentence in the instant case for the days he served in prison in an earlier case, awaiting trial in the instant case, where the two prison sentences were mandatory consecutive, and since any argument to the contrary would lack merit, the defendant’s appointed appellate counsel is granted leave to withdraw and the circuit court’s judgment, denying him additional credits against his instant sentence, is affirmed.
¶2 Pursuant to a fully negotiated agreement with the State, the defendant, Kevin Gary, pleaded
guilty to domestic battery, a Class 4 felony, and was sentenced to imprisonment for five years.
There was no direct appeal. Months later, the defendant filed a motion to amend mittimus for
additional time credits. The circuit court denied the motion. The defendant now appeals from that
denial. The defendant’s appointed counsel on appeal, the Office of the State Appellate Defender
(OSAD), has concluded that this appeal lacks merit, and accordingly has filed a motion to
1 withdraw as counsel (see Anders v. California, 386 U.S. 738 (1967)) and an accompanying brief.
OSAD properly gave notice to the defendant, along with a copy of the Anders motion and brief.
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 Anders motion and brief, 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 The background to the instant case begins with a separate, but similar, Madison County
case. In February 2015, the defendant was arrested for felony domestic battery in Madison County
case No. 15-CF-490. In July 2015, the defendant entered an open plea of guilty to that charge. He
was not immediately sentenced, but instead was released on bond pending sentencing, with the
expectation that he would complete domestic-violence classes in the meantime. Then, on July 6,
2016, while still out on bond in No. 15-CF-490, the defendant committed the offenses in the instant
Madison County case, No. 16-CF-1638. He was arrested that same day, and as a consequence, his
bond in No. 15-CF-490 was revoked. From July 6, 2016, to November 21, 2016, the defendant
was held in the Madison County jail in both No. 15-CF-490 and the instant case. On November
21, 2016, in No. 15-CF-490, he was sentenced to imprisonment for three years and was remanded
to the Illinois Department of Corrections (IDOC). (The mittimus in No. 15-CF-490 was dated
November 29, 2016, and for that reason, the November 29 date is sometimes confused with
November 21, 2016, which was the actual sentencing date in No. 15-CF-490.) On August 4, 2017,
the defendant completed his prison sentence in No. 15-CF-490 and was promptly returned to the
2 Madison County jail for prosecution in the instant case. On September 22, 2018, someone posted
bond for the defendant, and he was released from jail in the instant case.
¶5 On October 1, 2018, the defendant, defense counsel, and an assistant state’s attorney
appeared in court. Defense counsel announced that, pursuant to negotiations with the State, the
defendant had agreed to plead guilty to domestic battery, in exchange for a sentence of
imprisonment for five years, with credit for time served, and the payment of $2000 in restitution,
while the State would move to nol-pros the home-invasion count. The defendant’s credit for time
served was specified in a “Credit for Time Served” form that the defendant had reviewed and
signed. The State concurred that this was the parties’ agreement. The court went on to review
with the defendant the terms of the plea agreement, and he agreed that those were the terms. In
response to further queries from the court, the defendant stated that he was 34 years old, and he
indicated that he understood English and was not under the influence of any substance. After the
court admonished him as to the nature of the charge of domestic battery, the defendant stated that
he understood, and he pleaded guilty. The court thoroughly admonished the defendant about the
presumption of innocence, the State’s burden of proof, his right to a trial, his rights at trial, the
voluntariness of his actions at the hearing, and the possible penalties for this Class 4 felony,
including mandatory supervised release, or MSR, etc. The defendant responded in ways that
supported the court’s finding that a plea of guilty would be knowing, intelligent, and voluntary. A
factual basis for the plea was provided.
¶6 The court accepted the defendant’s plea, entered judgment thereon, and sentenced the
defendant to imprisonment for five years, to be followed by MSR for four years. The court
awarded credit for time served from July 6, 2016, to November 29, 2016, and from August 4, 2017,
to September 22, 2018, which were the time periods given in the “Credit for Time Served” form.
3 ¶7 The defendant did not file a motion to withdraw the guilty plea. He did not pursue a direct
appeal.
¶8 On January 9, 2019, the defendant filed a pro se “motion for order nunc pro tunc” wherein
he stated that he was entitled to 270 days of credit for time served.
¶9 On March 5, 2019, the defendant filed a pro se “petition to correct and amend mittimus.”
He stated:
“That on or about July 6, 2016 [sic] was detained and while he was being detained he
also was in custody simultaneously for Madison County case # 16-CF-1638 Domestic
Battery. While the Petitioner was in IDOC custody and was charged or indicted while
serving an unrelated sentence, he is entitled to the Custody credit. Petitioner relies on
[People v. Chamberlain, 354 Ill. App. 3d 1070 (2005) 3rd District [sic] of Appeals 822
N.E. 2d 914, 291 Ill. Dec. 39].”
The defendant claimed that he had been in the custody of either the IDOC or Madison County
from July 6, 2016, “to the present minus appx 9 days.” The defendant figured that his “out date”
should have been January 6, 2019.
¶ 10 On March 12, 2019, the circuit court entered a written order denying the defendant’s
motion for order nunc pro tunc, filed on January 9. The court noted that its mittimus included
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2022 IL App (5th) 190243-U NOTICE NOTICE Decision filed 04/12/22. The This order was filed under text of this decision may be NO. 5-19-0243 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 16-CF-1638 ) KEVIN GARY, ) Honorable ) Neil T. Schroeder, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court. Justices Wharton and Vaughan concurred in the judgment.
ORDER
¶1 Held: The defendant is not entitled to credit against his prison sentence in the instant case for the days he served in prison in an earlier case, awaiting trial in the instant case, where the two prison sentences were mandatory consecutive, and since any argument to the contrary would lack merit, the defendant’s appointed appellate counsel is granted leave to withdraw and the circuit court’s judgment, denying him additional credits against his instant sentence, is affirmed.
¶2 Pursuant to a fully negotiated agreement with the State, the defendant, Kevin Gary, pleaded
guilty to domestic battery, a Class 4 felony, and was sentenced to imprisonment for five years.
There was no direct appeal. Months later, the defendant filed a motion to amend mittimus for
additional time credits. The circuit court denied the motion. The defendant now appeals from that
denial. The defendant’s appointed counsel on appeal, the Office of the State Appellate Defender
(OSAD), has concluded that this appeal lacks merit, and accordingly has filed a motion to
1 withdraw as counsel (see Anders v. California, 386 U.S. 738 (1967)) and an accompanying brief.
OSAD properly gave notice to the defendant, along with a copy of the Anders motion and brief.
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 Anders motion and brief, 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 The background to the instant case begins with a separate, but similar, Madison County
case. In February 2015, the defendant was arrested for felony domestic battery in Madison County
case No. 15-CF-490. In July 2015, the defendant entered an open plea of guilty to that charge. He
was not immediately sentenced, but instead was released on bond pending sentencing, with the
expectation that he would complete domestic-violence classes in the meantime. Then, on July 6,
2016, while still out on bond in No. 15-CF-490, the defendant committed the offenses in the instant
Madison County case, No. 16-CF-1638. He was arrested that same day, and as a consequence, his
bond in No. 15-CF-490 was revoked. From July 6, 2016, to November 21, 2016, the defendant
was held in the Madison County jail in both No. 15-CF-490 and the instant case. On November
21, 2016, in No. 15-CF-490, he was sentenced to imprisonment for three years and was remanded
to the Illinois Department of Corrections (IDOC). (The mittimus in No. 15-CF-490 was dated
November 29, 2016, and for that reason, the November 29 date is sometimes confused with
November 21, 2016, which was the actual sentencing date in No. 15-CF-490.) On August 4, 2017,
the defendant completed his prison sentence in No. 15-CF-490 and was promptly returned to the
2 Madison County jail for prosecution in the instant case. On September 22, 2018, someone posted
bond for the defendant, and he was released from jail in the instant case.
¶5 On October 1, 2018, the defendant, defense counsel, and an assistant state’s attorney
appeared in court. Defense counsel announced that, pursuant to negotiations with the State, the
defendant had agreed to plead guilty to domestic battery, in exchange for a sentence of
imprisonment for five years, with credit for time served, and the payment of $2000 in restitution,
while the State would move to nol-pros the home-invasion count. The defendant’s credit for time
served was specified in a “Credit for Time Served” form that the defendant had reviewed and
signed. The State concurred that this was the parties’ agreement. The court went on to review
with the defendant the terms of the plea agreement, and he agreed that those were the terms. In
response to further queries from the court, the defendant stated that he was 34 years old, and he
indicated that he understood English and was not under the influence of any substance. After the
court admonished him as to the nature of the charge of domestic battery, the defendant stated that
he understood, and he pleaded guilty. The court thoroughly admonished the defendant about the
presumption of innocence, the State’s burden of proof, his right to a trial, his rights at trial, the
voluntariness of his actions at the hearing, and the possible penalties for this Class 4 felony,
including mandatory supervised release, or MSR, etc. The defendant responded in ways that
supported the court’s finding that a plea of guilty would be knowing, intelligent, and voluntary. A
factual basis for the plea was provided.
¶6 The court accepted the defendant’s plea, entered judgment thereon, and sentenced the
defendant to imprisonment for five years, to be followed by MSR for four years. The court
awarded credit for time served from July 6, 2016, to November 29, 2016, and from August 4, 2017,
to September 22, 2018, which were the time periods given in the “Credit for Time Served” form.
3 ¶7 The defendant did not file a motion to withdraw the guilty plea. He did not pursue a direct
appeal.
¶8 On January 9, 2019, the defendant filed a pro se “motion for order nunc pro tunc” wherein
he stated that he was entitled to 270 days of credit for time served.
¶9 On March 5, 2019, the defendant filed a pro se “petition to correct and amend mittimus.”
He stated:
“That on or about July 6, 2016 [sic] was detained and while he was being detained he
also was in custody simultaneously for Madison County case # 16-CF-1638 Domestic
Battery. While the Petitioner was in IDOC custody and was charged or indicted while
serving an unrelated sentence, he is entitled to the Custody credit. Petitioner relies on
[People v. Chamberlain, 354 Ill. App. 3d 1070 (2005) 3rd District [sic] of Appeals 822
N.E. 2d 914, 291 Ill. Dec. 39].”
The defendant claimed that he had been in the custody of either the IDOC or Madison County
from July 6, 2016, “to the present minus appx 9 days.” The defendant figured that his “out date”
should have been January 6, 2019.
¶ 10 On March 12, 2019, the circuit court entered a written order denying the defendant’s
motion for order nunc pro tunc, filed on January 9. The court noted that its mittimus included
specific dates for which the defendant was to receive presentence credit. “The defendant should
have also received credit from the date he surrendered, October 1, 2018, through the present,” the
order stated. If the defendant was in custody on any other dates, the court said, he could file
another motion that included those specific dates.
¶ 11 On March 21, 2019, the court appointed counsel to represent the defendant on his petition
to correct and amend mittimus, filed on March 5.
4 ¶ 12 On June 4, 2019, the court held a hearing on the defendant’s petition to correct and amend
mittimus, which the court referred to as a “motion to amend mittimus for additional time credits.”
The court heard arguments from the two sides. Defense counsel argued that the defendant “should
have received credit for the time he spent in the Department of Corrections on the 2015 case from
11/29/16, to 8/4/2017, as he was simultaneously in custody on both cases while he was serving
that sentence in 2015.” (That is, defense counsel was requesting an award of credit from the time
the defendant was sentenced in No. 15-CF-490 until the time he completed that particular sentence
and was returned to the Madison County jail for prosecution in the instant case.) Then, arguing in
the alternative, defense counsel stated: “Should this Court find that he is not entitled to double
credit for time spent in custody because it is a consecutive sentence, we ask that the court honor
the credit for time served sheet that has already been entered as it was part of plea negotiations.”
The State, in its own argument, asked that the defendant not be given any more credit.
Furthermore, the State asked the court to revoke the credit for the period July 6, 2016, to November
29, 2016, even though that was a part of the parties’ plea agreement.
¶ 13 After hearing the arguments of defense counsel and the State, the court denied the motion
to amend mittimus for additional time credits. According to the court, it could not award “double
credit” for prison sentences that were mandatory consecutive, as the sentences in Nos. 15-CF-490
and 16-CF-1638 were. The court also declined the State’s invitation to “take away” some of the
sentence credits that already had been awarded to him, explaining that although the defendant had
received some credit—approximately five months’ worth—for both his sentences in Nos. 15-CF-
490 and 16-CF-1638, the parties had agreed to those credits in their negotiations, and more than
30 days had expired since the plea and sentencing. The defendant filed a timely notice of appeal
from the denial order, thus perfecting the instant appeal.
5 ¶ 14 ANALYSIS
¶ 15 This appeal is from the circuit court’s order denying the defendant’s motion to amend
mittimus for additional time credits. As previously noted, OSAD has filed an Anders motion to
withdraw as counsel on the ground that this appeal lacks merit. The denial of a motion to amend
a mittimus is reviewed de novo. People v. Johnson, 401 Ill. App. 3d 678, 680 (2010). (For reasons
unknown, OSAD did not include a standard of review in its Anders motion.)
¶ 16 The defendant committed the instant offense, domestic battery, a Class 4 felony, on July 6,
2016, while he was out on bond in another Madison County case, No. 15-CF-490. Due to the fact
that he committed the instant offense while out on bond in No. 15-CF-490, the sentences in the
instant case and in No. 15-CF-490 needed to be consecutive (see 730 ILCS 5/5-8-4(d)(8) (West
2016)), and they were. In his motion to amend mittimus for additional time credits, the defendant
sought credit against the instant sentence for the time that spanned from his sentencing in No. 15-
CF-490 to the time he completed that particular sentence and was returned to the Madison County
jail for prosecution in the instant case. In other words, he sought credit against the instant sentence
for the time he spent in prison serving his earlier sentence, and awaiting the instant prosecution.
This approach would contradict the principle that a defendant serving consecutive sentences
should receive credit only once against the aggregate term of the consecutive sentences. See
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”). As the circuit court rightly explained to the defendant at the June 4, 2019, hearing on
the motion to amend mittimus, “you can’t get double credit” on your two mandatory consecutive
prison sentences. “You can only put credit towards one sentence, but not both.”
6 ¶ 17 CONCLUSION
¶ 18 The circuit court did not err in denying the defendant’s motion to amend mittimus for
additional time credits. Any argument to the contrary would lack merit. Therefore, OSAD is
granted leave to withdraw as counsel, and the judgment of the circuit court is affirmed.
¶ 19 Motion granted; judgment affirmed.