People v. Montalvo

2016 IL App (2d) 140905, 64 N.E.3d 84

• Court: Appellate Court of Illinois
• Decided: September 23, 2016
• Docket: 2-14-0905
• Status: Unpublished

Opinion

2016 IL App (2d) 140905 No. 2-14-0905 Opinion filed September 23, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) Nos. 08-CF-4518 ) 11-CF-2688 ) JOSHUA A. MONTALVO, ) Honorable ) John R. Truitt, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Burke and Birkett concurred in the judgment and opinion.

OPINION

¶1 Defendant, Joshua A. Montalvo, appeals from the judgment of the circuit court of

Winnebago County, contending that the trial court should have awarded him 39 days of sentence

credit for his participation as a pretrial detainee in an anger management program. Because

defendant was entitled to six days’ credit, we modify the mittimus and otherwise affirm the

judgment.

¶2 I. BACKGROUND

¶3 Defendant was charged with one count of burglary (720 ILCS 5/19-1(a) (West 2008))

and one count of retail theft (720 ILCS 5/16A-3(a) (West 2008)) (No. 08-CF-4518). Defendant 2016 IL App (2d) 140905

pled guilty to burglary and was placed on probation. While on probation he was charged with

one count of aggravated robbery (720 ILCS 5/18-5(a) (West 2010)) and one count of robbery

(720 ILCS 5/18-1(a) (West 2010)) (No. 11-CF-2688).

¶4 On May 13, 2013, defendant pled guilty in No. 11-CF-2688 to aggravated robbery and

admitted in No. 08-CF-4518 to violating his probation. The trial court sentenced defendant to

concurrent seven-year terms of imprisonment, with credit for time served of 571 days in No. 08-

CF-4518 and 444 days in No. 11-CF-2688. The court ruled that any sentence credit for

defendant’s participation in any programs while a pretrial detainee was to be determined by the

Department of Corrections (DOC). Defendant did not appeal.

¶5 On February 3, 2014, defendant requested that the trial court correct the mittimus in both

cases to reflect sentence credit for an anger management program that he completed while a

pretrial detainee. In support of that motion, defendant submitted a letter signed by Linda

Limberg, the jail programs supervisor, which stated that defendant had successfully completed

an anger management program. According to Limberg’s letter, the program required attendance

one day per week for two hours and ran from “July 24, 2012 [sic] *** through October 29,

2013.”

¶6 The trial court entered a new judgment, nunc pro tunc to May 13, 2013. The new

judgment referred to an attached certificate showing that defendant had completed an anger

management program that “reflect[ed] 24 hours completed (12 sessions at 2 hours each) to be

considered for possible good time credit per [DOC] policy.”

¶7 In March 2014, defendant filed a pro se motion, seeking that credit for time served of 571

days be applied to his sentence in No. 11-CF-2688. The trial court denied the motion.

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¶8 On August 19, 2014, defendant, through his attorney, filed a motion to amend the

mittimus in both cases. The motion sought 571 days’ credit in No. 11-CF-2688 and 36 days’

credit in both cases for completion of the anger management program.

¶9 The trial court denied the motion as to the 571 days of credit. However, the court ordered

that supporting documents be sent to the DOC to determine whether credit for completion of the

anger management program should be granted. Defendant filed a timely appeal in both cases.

¶ 10 While this appeal was pending, defendant filed an “emergency” motion, in which he

requested that this court remand the matter to the trial court with directions that it calculate the

credit to which he is entitled for completion of the anger management program and issue another

amended mittimus reflecting such credit. After briefing, we denied the motion.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant contends that (1) the trial court erred by failing to determine itself

whether he was eligible for sentence credit for the anger management program and, if so, how

many days’ credit he should receive; and (2) because the program ran for 78 calendar days, he is

entitled to a half-day’s credit per day for a total of 39 days’ credit.

¶ 13 The State responds that (1) this appeal is moot, because defendant has completed his term

of imprisonment; and (2) although the anger management program qualifies defendant for

sentence credit, he is entitled to only 4 days, because he completed the 15-hour minimum

attendance requirement by attending a 2-hour session on 8 separate days.

¶ 14 We begin with the issue of whether this appeal is moot. It is not. An appeal becomes

moot when an occurrence of events since the filing of the appeal makes it impossible for the

reviewing court to provide effective relief. People v. Jackson, 199 Ill. 2d 286, 294 (2002).

Where a defendant has been released from prison but remains on mandatory supervised release

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(MSR), a reduction in his prison sentence would affect how long he could be reincarcerated for a

violation of his MSR. Jackson, 199 Ill. 2d at 294 (citing 730 ILCS 5/3-3-9(a)(3)(i)(B) (West

1996)). Accordingly, a challenge to the length of a prison term is not moot if it is brought before

the defendant has completed his MSR. People v. Elizalde, 344 Ill. App. 3d 678, 681 (2003),

overruled in part on other grounds, People v. Graves, 235 Ill. 2d 244, 254-55 (2009).

¶ 15 In this case, defendant, although he has completed his term of imprisonment, has not yet

completed his MSR. Therefore, should he violate his MSR and be reincarcerated, any sentence

credit would reduce the length of his imprisonment. 1 Thus, defendant’s appeal is not moot.

¶ 16 The State’s reliance on People v. Whitfield, 217 Ill. 2d 177 (2005), is misplaced. The

supreme court held in Whitfield that, although MSR is part of a defendant’s sentence, a court has

no authority to alter a statutorily mandated term of MSR. Whitfield, 217 Ill. 2d at 202. Here,

defendant does not seek to have his MSR shortened. Rather, he seeks credit to be applied to any

term of imprisonment that may result from a violation of his MSR. Thus, Whitfield does not

apply.

¶ 17 We turn to the merits of defendant’s appeal. When we interpret a statute, the primary

goal is to ascertain and give effect to the legislative intent. People v. Giraud, 2012 IL 113116,

¶ 6. The surest and most reliable indicator of that intent is the statutory language itself, given its

plain and ordinary meaning. Giraud, 2012 IL 113116, ¶ 6. In determining the plain meaning of

statutory language, we consider the statute in its entirety, keeping in mind the subject it addresses

and the apparent intent of the legislature in enacting it. Giraud, 2012 IL 113116, ¶ 6. If the

1 Defendant asserts in his reply brief that he “has actually been returned to custody in the

[DOC] as a possible violator of the conditions of MSR.” Our conclusion that this appeal is not

moot, however, does not depend on whether defendant has actually violated his MSR.

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statutory language is clear and unambiguous, we must apply it as written, without resort to

extrinsic aids of statutory construction. Giraud, 2012 IL 113116, ¶ 6. A question of statutory

interpretation is subject to de novo review. Giraud, 2012 IL 113116, ¶ 6.

¶ 18 Because the Illinois Administrative Code (Administrative Code) has the force and effect

of law, the rules of statutory construction apply to interpreting its provisions. Ress v. Office of

the State Comptroller, 329 Ill. App. 3d 136, 142 (2002). Accordingly, the primary aim is to give

effect to the drafters’ intent. Ress, 329 Ill. App. 3d at 142. The best indicator of that intent is the

language of the provision, which is given its plain and ordinary meaning. Ress, 329 Ill. App. 3d

at 142. An interpretation of the Administrative Code is reviewed de novo. People ex rel.

Madigan v. Petco Petroleum Corp., 363 Ill. App. 3d 613, 628 (2006).

¶ 19 We begin our analysis with section 3-6-3(a)(4) of the Unified Code of Corrections (Code

of Corrections) (730 ILCS 5/3-6-3(a)(4) (West 2012)), which provides, in pertinent part, that a

pretrial detainee may earn sentence credit for program “participation” if, among other options, he

completes a “full-time *** behavior modification program *** provided by the county

department of corrections or county jail.” Calculation of the program credit “shall be done at

sentencing” and shall be included in the sentencing order. 730 ILCS 5/3-6-3(a)(4) (West 2012);

see also 20 Ill. Adm. Code 107.17 (2013). The trial court shall give a defendant credit for

successfully completing such programming before the imposition of sentence, at the rate

specified in section 3-6-3. See 730 ILCS 5/5-4.5-100(c-5) (West 2012). Such credit is to be

one-half day for each day of eligibility. See 730 ILCS 5/3-6-3(a)(4) (West 2012).

¶ 20 We first address the question of whether the trial court erred in failing to determine

whether defendant was eligible for sentence credit and, if so, how much. Both parties contend

that the trial court erred in not doing so. We agree. The calculation of such credit was to be

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done at sentencing and included in the sentencing order. See 730 ILCS 5/3-6-3(a)(4) (West

2012). Further, the trial court was required to give defendant credit for his successful completion

of the anger management program, at the rate specified in section 3-6-3. See 730 ILCS 5/5-4.5-

100(c-5) (West 2012). We read those two provisions together as placing the obligation on the

trial court to determine whether defendant was eligible for sentence credit and, if so, how much.

We need not remand for the trial court to make those determinations, however, as we are

authorized to do so and amend the judgment accordingly. See Ill. S. Ct. R. 366(a) (eff. Feb. 1,

1994).

¶ 21 We next address the question of whether the anger management program constituted a

full-time program within the meaning of section 3-6-3(a)(4) of the Code of Corrections.

Although the Code of Corrections does not define a “full-time” program, section 107.520(d)(4)

of the Administrative Code states that “[f]ull-time assignment to a program for which an

offender may be eligible to receive program sentence credit shall mean: *** enroll[ment] in a

behavior modification program for which a minimum of 15 hours of participation is required for

completion.” 20 Ill. Adm. Code 107.520(d)(4) (2013).

¶ 22 There is no dispute that completion of the anger management program in this case

required defendant to participate by attending 12 two-hour sessions. The 24 hours of required

participation exceeded the required minimum of 15 hours. Thus the program, which defendant

successfully completed, was full-time for purposes of section 3-6-3(a)(4).

¶ 23 That leaves the question of the amount of sentence credit for which defendant was

eligible. In answering that question, we look to the relevant provisions of the Code of

Corrections and the Administrative Code. Section 3-6-3(a)(4) of the Code of Corrections

provides, in pertinent part, that a defendant is eligible for sentence credit for his “participation”

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in a program. 730 ILCS 5/3-6-3(a)(4) (West 2012). Further, section 107.520(d)(4) of the

Administrative Code requires at least 15 hours of “participation” for an offender to receive

sentence credit. 20 Ill. Adm. Code 107.520(d)(4) (2013). Clearly, the drafters intended that a

pretrial detainee receive credit only for his participation in a qualified program.

¶ 24 We must next decide what the drafters meant by participation. As noted, we are to give

statutory language its plain and ordinary meaning. See Giraud, 2012 IL 113116, ¶ 6. The plain

and ordinary meaning of “participate” is to actively partake. See Webster’s Third New

International Dictionary 1646 (1993). In other words, to get sentence credit, an offender must

actively partake in the particular program on each day for which he seeks credit. This

interpretation is consistent with the legislative intent to give sentence credit to encourage

offenders to participate in rehabilitative programs such as the one at issue here. See Guzzo v.

Snyder, 326 Ill. App. 3d 1058, 1063 (2001) (award of good-conduct credit is to acknowledge and

encourage meritorious inmate service).

¶ 25 Here, defendant actively partook in the program by attending sessions on 12 days.

Therefore, he participated on 12 days. Thus, he is entitled to a half-day’s credit for each of those

days.

¶ 26 Although defendant contends that he is entitled to 39 days’ credit, because the program

spanned 78 calendar days, we disagree. As noted, it was defendant’s participation on a particular

day that determined whether he was eligible for credit for that day. There is nothing in the

record to show that defendant was required to participate in any way other than by attending.

Giving defendant credit for those days on which he did not attend would be inconsistent with the

meaning of participation and the intent of section 3-6-3(a)(4). Thus, only those days on which

defendant actually attended could be counted toward his credit.

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¶ 27 The State, although agreeing that defendant should receive credit for only those days on

which he attended, contends that his credit should be capped at eight days, as that is what it took

for him to satisfy the minimum 15 hours of required participation. That approach, however,

ignores the plain language of section 3-6-3(a)(4), which permits an offender to receive credit for

each day he participates. It is also inconsistent with the legislative intent to encourage

participation in such programs by rewarding an offender with credit for his participation.

Because the particular program at issue in this case required defendant to participate by attending

on 12 days, defendant is entitled to receive credit for each of those days.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

However, pursuant to Illinois Supreme Court Rule 366(a), we modify the mittimus in both cases

to reflect six additional days of sentence credit.

¶ 30 Affirmed as modified.

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